State of North Carolina s41

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF CLEVELAND 01 DHR 0538

Tiffany D. Lott, ) Petitioner ) ) v. ) DECISION ) The Division of Child Development in the ) North Carolina Department of Health and ) Human Services, ) Respondent )

This matter was heard before Administrative Law Judge Sammie Chess, Jr., on July 10, 2001 in Newton, North Carolina. BACKGROUND

The Parties were ordered to file proposed findings of fact, conclusions of law and proposed decisions. The record closed upon receipt of the above-described documents on November 4, 2001. Pursuant to a Protective Order which was issued in this matter, the record is sealed.

APPEARANCES

For Petitioner: Petitioner Tiffany Lott represented herself. For Respondent: Ann B. Wall, Assistant Attorney General

Whether Respondent acted erroneously or failed to use proper procedure or failed to act as required by law or rule when, on March 6, 2001, it issued a Notice of Administrative Action revoking the License of Tiffany’s Tots, ID # 23000163, a family child care home?

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. §§ 110-86(3)(b), 110-88, 110-90.2, 110-90(5), 110-91, 110-94, 110-98, 110-102.2(5), 110-105, 110-105.2; 10 N.C.A.C. 3U .1701, 3U.1702, 3U.1705, 3U.1716, 3U.1718 – .1723, 3U.1903, 3U.2006, 3U.2007, 3U.2011.

EXHIBITS - 2 -

Petitioner’s Exhibits 1 through 5 were offered and received into evidence. Respondent’s exhibits 1, 3 through 22, 26 through 28, 30 through 34, and 36 and 37 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, Tiffany Lott , operates Tiffany’s Tots, a Family child care home, (hereafter, “Tiffany’s”) at 341 South Main Street, Waco, Cleveland County, North Carolina, subject to License ID No. 23000163 issued by the Respondent. ® Exh. 34) Tiffany Lott is the owner and operator of Tiffany’s Tots.

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

THE SUBSTANTIATIONS OF CHILD NEGLECT AND LANGUAGE COMPLAINT

3. The Supervision Requirement: Respondent’s Licensing Enforcement Manager, Talitha Wright, explained that there is a legal requirement regarding the supervision of children in family child care homes: “All of the children who are awake must be visually supervised at all times. If children are asleep, then they can be left in a room separate from the children who are awake so long as the provider can hear them and respond immediately in case there was some distress.” (TR 34-35) Ms. Wright explained that the rule is “... related to safety and to be able to assure that the children, you know, can be attended to if they were to get sick or, you know, attempt to get out of bed and fall or -- you know, those kinds of things.” (TR 35)

The Investigation in Which a Child Was Found to Have Been Left Alone:

1. Initiation of the DSS and DCD Investigations: In April 2000, Cleveland County Department of Social Services (hereafter, “DSS”) Child Protective Services worker Michelle Wallen was assigned to investigate a report of child neglect at Petitioner’s Family child care home. (TR 200) The allegations were that Greg Lott, Petitioner’s husband, was “drinking in the day care.” (TR 201) Ms. Wallen began her investigation by visiting Ms. Lott’s home on April 14, 2000, within the mandatory 72 hour time frame for that type of child neglect investigation. (TR 200) She interviewed Petitioner, Mr. Lott, and several children. (TR 201) During this first visit to Petitioner’s home Ms. Wallen also interviewed a parent, Nichole Feaster, who arrived at the child care home. (TR 202) Ms. Wallen then called Respondent’s Abuse/Neglect Consultant, LaTonia Hopper, to arrange for a joint visit to Ms. Lott’s Family child care home. (TR 202) In the meantime, Abuse/Neglect Consultant Hopper had received notice that she had been assigned - 3 - on behalf of Respondent to investigate the allegation regarding Mr. Lott’s drinking in the home. (TR 169, R Exh. 16) Ms. Hopper had previously investigated and substantiated a complaint involving Mr. Lott’s drinking around children in Petitioner’s child care home. (See, Findings of Fact 14 through 17, infra)

5. On April 18, 2000, Ms. Wallen and Ms. Hopper drove to Tiffany’s Tots and parked near the back carport. (TR 215).

6. When they arrived there were passenger vans and cars parked in the home’s driveway. (TR 203)

7. Ms. Wallen and Ms. Hopper went to the back of the house where Ms. Lott normally lets people into the day care.

8. They “[k]nocked repeatedly, heard footsteps, like maybe a television on, something on, a radio or television, and rapid footsteps. (TR 203, R Exh.18)

9. They split up at that point, with Ms. Hopper staying at the back entrance of the home while Ms. Wallen went to the front of the house to knock on that door. (TR 203)

10. Ms. Hopper documented spending 15 minutes knocking on the door and no one answered. (R Exh.18)

11. Thereafter, Ms. Wallen and Ms. Hopper left because they had no cell phone, to call Ms. Hopper’s supervisor, Yvonne Baker. (TR 203)

12. Nellie Stamey is the mother of 10 year old “J”, a child enrolled at Tiffany’s Tots. (TR 73) 13.

13. When she first arrived on April 18, 2000, only Mr. Lott and one child were present in the Family child care home, and that the absence of Ms. Lott and the other children made her and “J” late for a doctor’s appointment. (TR 74, 207, R Exh.18).

14. On April 17, 2000, Ms. Stamey’s son “J” testified that the next day, in the course of describing the events of April 18 to her, “J” said: “... that morning there was some ladies (sic) that came to the door, and she (Ms. Lott) wanted them all to be quiet and pretend they weren’t there. So they all had to be real quiet. And he said he got scared because he thought somebody was trying to break in.” (TR 75, R. Exh. 18)

15. Ms. Hopper and Ms. Wallen parked in a side street where they could observe the Family child care home. (TR 203) When one of the passenger vehicles which had been parked in the driveway left, they followed it, stopped it and spoke with the person inside. (TR 203-204, R Exh.18) - 4 -

16. The individual, a parent of an enrolled child, initially indicated to them that she had not been inside the Petitioner’s home, but rather next door. (TR 204, R Exh.18)

17. After some questions, the parent admitted that she had, in fact, been inside Petitioner’s home and that “Ms. Lott had told them to be quiet and hide out until, you know, Ms. Hooper and Ms. Wallen went away.”

18. Regarding the Child Care Van incident, ten year old “J” informed his mother that “ ...right after Ms. Hopper and Ms. Wallen left, she, Ms. Lott, put them all in the van real quickly... and then they took off... they went to Cherryville, picked up another child and then went to Shelby.

19. Petitioner left a child unattended while she was away in Shelby. There was no one with the child who was asleep. Petitioner went back to her day care home and let her husband off at the house to go in and stay with that child...” (TR 75-76, R Exh.18) Other children confirmed “J’s” account. (TR 207-208, 209)

20. Ms. Wallen and Ms. Hopper saw the van “come down the road and let Mr. Lott off. He then ran in the house.” (TR 204-205)

21. Ms. Wallen recognized and pointed out Nichole Feaster, who was in a Jeep Cherokee in Petitioner’s driveway. (TR 205, R Exh.18)

22. Ms. Hopper and Ms. Wallen followed the child care van and Ms. Feaster followed them. (TR 205, R Exh.18)

23. Ten year-old “J” told his mother about the events of April 18, 2001. He said “Mom, we was (sic) in a high-speed chase with those people (Ms. Hopper and Ms. Wallen) today.” (TR 74, 207) ... sometime during their travels, there was a car – that car got behind them – those women that had come to the house to see them, which were the DSS workers, and she (Ms. Lott) was trying to outrun them. She was going real fast and the road was real curvy.” (TR 76, R Exh.18)

24. Ms. Lott was on the phone to her sister, who was behind the DSS worker and she told her sister – “I don’t care what you have to do. Lose them.”

25. Social Worker Michelle Wallen and Ms. Hopper followed the van through Cherryville, into Gaston County... ended up back in Cleveland County, and the Jeep Cherokee kept – right on their bumper.

26. The jeep suddenly passed the DSS workers and came over on top of them and caused them to brake and slide off onto a dirt part of the road, like the shoulder of the road. - 5 -

27. The force caused the Cokes and notebooks to slide off onto the floor. (TR 205-206, R Exh.18) The DSS worker lost the van because Ms. Feaster was driving back and forth in front of them to prevent them from passing. (TR 206, R Exh.18)

28. After losing the van, Ms. Wallen and Ms. Hopper returned to the Petitioner’s Family child care home, where they found the van being unloaded. They initiated contact with “J’s” mother, who had arrived at some point after they began following the van. (TR 74, 207, R Exh.18)

29. Ms. Hopper counted the number of seats in the van because of the ages of the children present, and found that there was one booster seat and two regular car seats. (TR 206)

30. Ms. Hopper also obtained the names and ages of the ten (10) children who got off the van. (TR 175, R Exh.18)

31. Based upon the numbers counted by Ms. Hopper and the information obtained from the children in interviews, it was determined that there were as many as 17 children on the van. (TR 176, 179)

32. Petitioner stated in her December 23, 2000 written response to Respondent’s Notice of Administrative Action, that the reason she didn’t answer the door when Ms. Hopper and Ms. Wallen knocked was that she was home alone. (R Exh.28)

33. She further explained that she “didn’t know that was who was at the door, and since she was previously cited for children violations regarding supervision she couldn’t leave the children unattended.” (R Exh.28)

34. Petitioner stated that by the time she lined the children up to accompany her to the door, Ms. Wallen and Ms. Hopper had left. (R Exh.28)

35. Petitioner did not give a creditable reason for taking fifteen minutes to line them up. ( R Exh. 28, Finding of Fact above)

36. Petitioner denied having as many as 17 children present, relying upon her attendance sheets for the day. (R Exh.28)

37. Petitioner denied that a child had been left alone. (TR 206, R Exh.18, 28) Rather, according to Ms. Lott, the children had been napping and were simply unaware that the one child, “Sudie”, had been picked up and taken to McDonald’s by Nichole Feaster with her parents’ permission. (TR 206, R Exh.18, 28)

38. Ms. Feaster claims that she had picked the child up and taken her to McDonalds is not credible. (TR 127-128) - 6 -

39. Ms. Feaster also asserted that at some point that day, she was asked by another parent to pick up the other parents’ children. (TR 129-130) Therefore, she went looking for Petitioner on the country road where Petitioner was traveling to stop Petitioner and get three children for whom she has parental consent to pick up.(TR 130)

40. Petitioner confirmed in her written response that her sister met her and picked up three children. (R Exh.28) Ms. Feaster testified that she tried unsuccessfully to reach her sister by cell phone and, at some point passed an unknown vehicle which had been swerving across the road. (TR 131)

41. Ms. Feaster testified that she managed to stop her sister and picked up the two children. (TR 131)

42. Both Ms. Lott and Ms. Feaster denied Ms. Lott having been followed by Ms. Hopper and Ms. Wallen, as well as knowledge of their having been forced off the road. (TR 206, R Exh.18, 28)

43. Following normal procedures, Ms. Wallen interviewed not only “J”, but also other children regarding both the events of April 18 and the initial report allegations which she had been assigned to investigate. (TR 207-209) She also spoke with Petitioner.

44. A decision was made by DSS to substantiate child neglect based upon an “environment injurious to children” because the child “Sudie” had been left alone at the Petitioner’s home for an unknown amount of time. (TR 209, R Exh.20) Ms. Wallen notified the Petitioner of the DSS conclusions. (TR 214-215)

45. She also notified Abuse/Neglect Consultant Hopper and Respondent of the substantiation. (TR 180, R Exh. 20) The Respondent found that the DSS substantiation of neglect was a violation of G.S. §110.105.2. ( R Exh. 34) In addition, the Respondent considered the events of April 18, 2000 to have created a non-nurturing environment for the children in Petitioner’s care. (TR 181, R Exh. 34)

The Investigation in Which Greg Lott Was Found to Drink Beer Around Enrolled Children

46. Greg Lott drank beer around enrolled children in 1999. (TR 66)

47. Kimberly Shepherd is the parent of a boy and a girl who were enrolled at Tiffany’s Tots for two days in 1999 when they were 2 and 7 years old, respectively. (TR 64) Ms. Shepherd testified that she moved her children to Tiffany’s because it was more convenient.

48. Matthew Weathers was a Child Protective Services worker for the DSS. He investigated the neglect report about Petitioner’s husband drinking beer in front of the child care children. (TR 157) - 7 -

49. Andrew Hooper, DSS Supervisor participated in the DSS staffing in which it was decided to substantiate child neglect against Petitioner. (TR 159)

50. Normal DSS procedures were followed, including interviews by a Social Worker with Petitioner, her husband, children and the person who made the report. (TR 159)

51. The basis for the DSS substantiation of neglect were the consistent accounts by child witnesses aged 7, 8 and 10. (TR 160, R Exh. 8)

52. The children were consistent in their statements that Greg Lott, Petitioner’s husband, poured and then drank a specific kind of beer from a red cup. (TR 160)

53. Abuse/Neglect Consultant LaTonia Hopper was assigned to investigate the allegations of beer drinking in front of children enrolled in the Family child care home. (TR 164, R Exh. 3)

54. In the course of her investigation, Ms. Hopper interviewed Petitioner and Greg Lott, as well as parents of enrolled children. (TR 166, R Exh. 4)

55. Although Petitioner denied during Ms. Hopper’s and subsequent investigations that anyone in the Family child care home used alcohol at all, Mr. Lott admitted that he drank alcohol. (TR 166, R Exh. 4) Mr. Lott denied, however, that he drank in front of the child care children, saying instead, that he went outside to drink. (TR 166, R Exh.4)

56. When Consultant Hopper spoke with DSS worker Weathers, he informed her that when he interviewed Mr. Lott, he denied drinking alcohol, claiming instead that he only drank a non-alcoholic beer. (TR 168, R Exh. 4)

57. Respondent relied upon both the DSS substantiation of neglect and Ms. Hopper’s own investigation when it cited Petitioner for violations in connection with the beer drinking incident. (TR 167, R Exh. 8)

The Abusive Language Complaint

58. The Incident: Early in the year 2000, Petitioner called her bank to inquire about the account of her child care home. (TR 155)

59. Angela Michelle Solomon, then a switchboard operator, received the call and verified Petitioner’s name and Social Security Number. (TR 148-149) During the course of the conversation, Petitioner yelled at children whom Ms. Solomon could hear in the background and Petitioner called the children “brats” and used the word “hell”. (TR 150)

60. The DCD Investigation: During a February 3, 2000 visit to Petitioner’s Family child care home on Abuse/Neglect Consultant LaTonia Hopper received a page regarding the report - 8 -

filed by Ms. Solomon. (TR 100, R Exh. 10, 11, 12) The complaint was investigated by Child Care Consultant Tracy Clark (TR 101) and she substantiated the complaint as a violation of requirements that children be cared for in a nurturing manner. (TR 141)

THE REPEATED SUPERVISION VIOLATIONS

61. Child Care Consultant Tracy Clark personally observed that Petitioner fail to properly supervise children in her care. These included:

A. During a September 13, 1999 visit (TR 89-90, R Exh. 36):

1. An infant was left unsupervised for over three hours inside Petitioner’s house.

2. A fire drill was conducted at the request of Ms. Clark shortly after children were put down for naps. The infant who had been behind a closed door and neither mentioned nor attended to by Petitioner during the 3 hours Ms. Clark was present was not evacuated during the fire drill;

3. The children, who were put down for naps, were not visually supervised as required until they slept. A child wrapped a Nintendo cord around its wrist. Evacuation of children during the fire drill was delayed because Petitioner had to untangle the cord;

4. Children were not visually supervised but were allowed to go to the bathroom and kitchen with no supervision.

B. During a September 22, 1999 follow-up visit, children were again not visually supervised (TR 91, R Exh.14):

1. A group of unsupervised children answered the door when Ms. Clark arrived;

2. Another group of unsupervised children were in the play area while Ms. Lott was down the hall.

C. During an October 11, 1999 visit, children were again not visually supervised. Upon Ms. Clark’s arrival, she found a substitute caregiver outside smoking, Petitioner in one room, and eight (8) unsupervised children alone in a different room, the play area. (TR 94, R Exh. 1)

D. During an October 26, 1999 visit, children were again not visually supervised. Upon Abuse/Neglect Consultant Hopper’s arrival, a substitute caregiver met her at the door and engaged her in conversation for several minutes while two - 9 -

children who were awake were left unsupervised at the other end of the house. (TR 95, R Exh. 3)

E. During a November 4, 1999 visit which was completed on November 16, 1999, children were again not visually supervised. (TR 95, R Exh. 5) When Ms. Clark and Abuse/Neglect Consultant Hopper arrived, there was an unsupervised preschool age child awake and crawling around on the top bunk in a room where other children were asleep. Petitioner asserted that the child awoke while she was going to answer the door and was properly supervised until the arrival of the consultants. ® Exh. 22, 28)

THE REPEATED VIOLATIONS RELATED TO THE NUMBER OF CHILDREN

62. The Requirements: Licensing Enforcement Manager Talitha Wright testified that a Family child care home is limited by law to a maximum of eight (8) children at any one time (5 preschool, 3 school age). (TR 34) The child care provider’s own preschool age children are included in the permitted five (5) preschool age children but the provider’s school age children do not count. (TR 34) She stated that the purpose of this requirement is: “[t]he basis is related to just assuring basic health and safety. When the law was adopted, there was concern about the ability of someone to be able to evacuate children in case of an emergency, also to be able to provide appropriate attention to young children and when there are a range of ages involved, to be able to attend appropriately to their developmental needs.” (TR 34)

63. On her first visit to Petitioner’s Family child care home on September 13, 1999, Consultant Tracy Clark found that Petitioner was over-enrolled. Petitioner admitted that she had 32 children enrolled for 3 shifts including weekend shifts. Ms. Clark actually counted at least 35 children on Petitioner’s rolls. (TR 88, R Exh. 36) Ms. Clark testified that she was over-enrolled and exceeded the allowed one hour shift overlap time at three different times. (TR 88) On cross- examination, Ms. Clark clarified that the over enrollment consisted of four (4) too many children on first shift, and two (2) too many on both second and third shifts. (TR 108, R Exh. 36)

64. Consultant Clark found the following violations of the requirements regarding the maximum capacity (or number of children) permitted in a Family child care home:

A. On February 23, 2000, a review of Petitioner’s attendance records revealed that Petitioner exceeded capacity by having nine (9) children present at one time on February 7, 2000 (TR 102-103, R Exh. 13);

B. On April 18, 2000, during the incident described above in Findings of Fact No. 5 through 11, Petitioner exceeded permit capacity by having as many as 17 children in the Family child care home at one point and as many as 10 children on the van.

65. Consultant Clark also testified about occasions on which Petitioner was found to have in excess of the allowed maximum number of five (5) preschool children present: - 10 -

A. On September 22, 1999, there were six (6) preschool children present, based upon the ages provided by Petitioner (TR 91, R Exh. 14);

B. On January 26, 2000, Petitioner informed Ms. Clark that there were five (5) preschool children present. However, when Ms. Clark walked through the home to verify the numbers provided, she found an additional two (2) preschool children in the den in the care of Petitioner’s husband, Greg Lott. (TR 97-98, R Exh. 9) Petitioner initially told Ms. Clark that she forgot about the children and therefore did not count them. Then she told Ms. Clark that the children’s mother should already have picked them up, and finally, she admitted to Ms. Clark that she knew that she would be cited for violations if she said how many preschool children were actually present. (TR 98, R Exh. 9) Petitioner maintained that the mother of two of the children had an emergency and that Petitioner made efforts to find alternative transportation home for the children. (TR 98, R Exh. 9) Ms. Clark found that this incident of having too many preschool children also violated a Corrective Action Plan which Respondent had issued as part of a Written Warning. (TR 99, R Exh. 9, )

THE CRIMINAL RECORDS CHECK VIOLATION

66. Petitioner was cited on two different occasions for having failed to obtain and file with the Respondent the required criminal records check information for her husband, Greg Lott. (R Exh. 5, 9 ) Mr. Lott admitted that he lived in the home at least part time. (See, e.g., TR 116, R Exh. 5) He was found by the consultants to be caring for the children on at least one occasion. (TR 97-98, R Exh. 9) He was present on many occasions when Respondent’s consultants went to the Family child care home. (See, e.g., TR 116, R Exh. 5) Mr. Lott was with Petitioner in the van when beer was purchased and drunk while child care children were present. (TR 66 - 67, R Exh. 4) Petitioner maintained throughout the investigations and hearing that her husband neither lived at the Family child care home nor cared for the children. (See, e.g., TR 102 , R Exh.5)

67. It was stipulated at this hearing that Petitioner did submit the required criminal records check information by February 2000. (TR 260)

OTHER SAFETY RELATED VIOLATIONS

68. Respondent’s consultants found the following additional safety related violations during visits to Petitioner’s home:

A. On September 13, 1999, a weed eater and a lawnmower were accessible to children (R Exh. 36);

B. On September 22, 1999, a child care provider did not have proof of a negative TB test before beginning work ® Exh.14); - 11 -

C. On September 22, 1999, there was no written feeding schedule for a child under fifteen months of age (R Exh.14);

D. On November 16, 1999, Petitioner admitted that, because he was disturbing other children, she had permitted a child to sleep overnight on a cot in the office where there was no smoke detector. (TR 95, R Exh. 5) Petitioner challenged the assertion that the child was there overnight because he was second shift but Consultant Clark explained that the child slept in the office during normal hours of sleep (TR 106-107, R Exh. 5, 22, 28);

E. On April 18, 2000, Petitioner transported children in a vehicle without an adequate number of seat belts or child restraints for the number and ages of children present. (TR 206, R Exh. 18)

THE RECORDS VIOLATIONS

69. Respondent’s consultants also found repeat violations of record keeping requirements:

A. On September 13, 1999, Petitioner had a preschool child present, her niece, who was not enrolled and for whom she admitted that she had none of the required records (TR 90, R Exh. 36);

B. On September 22, 1999, Petitioner again lacked records for one child (R. Exh. 14).

THE CORRECTIVE ACTION PLAN VIOLATIONS

70. In monitoring a Corrective Action Plan (hereafter, “CAP”) included in a December 3, 1999 Notice of Administrative Action issuing a Written Warning to Petitioner, Respondent found several violations or failures to comply with the CAP:

A. Petitioner attended a December 1999 meeting arranged by Consultant Clark to provide technical assistance related to supervision of children in Family child care homes, but refused to accept the proffered information on the grounds that she had corrected the supervision violations (TR 96, R Exh. 7);

B. On January 26, 2000, Petitioner exceeded the number of preschool children allowed and had failed to maintain accurate attendance records (TR 97, R Exh. 9);

C. On February 3, 2000, monitoring indicated that Petitioner had not complied with CAP requirements related to a staff meeting, training and attendance requirements. ( R Exh. 10, 11)

PROVIDING FALSE INFORMATION - 12 -

71. As noted above, in Finding of Fact Number 24, on January 26, 2000, Petitioner deliberately made statements which she knew to be false to Respondent’s Consultants in an effort to avoid the citation of violations.

PROCEDURES

72. Respondent followed its normal procedures as explained by Licensing Enforcement Manager Talitha Wright. (TR 22-27)

73. Respondent made complaint and follow-up visits to Petitioner’s family child care home during which observations were made.

74. Petitioner was notified of the content of the complaints against her and afforded the opportunity to respond. (See, e.g., R Exh. 1, 3, 4)

75. Petitioner was also asked to, and did, file written responses to violations cited, indicating that the violations had been corrected.

76. A Notice of Administrative Action issuing a Written Warning to Petitioner was issued on December 3, 1999. Petitioner was informed of her right to appeal the Written Warning and did not do so. (R Exh. 6)

77. The Written Warning contained a Corrective Action Plan which specified actions she must take in order to come into compliance with the Child Care Act and Rules.

78. During the Abuse/Neglect investigations of Petitioner, Respondent’s consultant interviewed Petitioner, her husband, parents, persons who made reports of child neglect and substitute caregivers. (See, e.g., TR 166, R Exh. 4)

79. Respondent’s consultant coordinated with and relied upon the work of the DSS social workers assigned to investigate complaints against Petitioner. (See, e.g., Finding of Fact No. 5)

80. In some instances, Respondent’s consultant observed DSS interviews of children. ® Exh.18) Petitioner was afforded the opportunity to, and did, respond to the allegations during the investigations.

81. Respondent’s consultants initially recommended to its Review Panel that a Special Provisional License be issued to Petitioner and the initial Review Panel agreed. (TR 180, R Exh. 19)

82. A Notice of Proposed Action containing a Special Provisional License and Civil Penalty was issued to the Petitioner on August 2, 2000. (R Exh. 21) - 13 -

83. She was afforded a fifteen day opportunity in which to file a written response as to why the Special Provisional License and Civil Penalty should not be issued. (R Exh. 21) Petitioner did file a response which was considered by Respondent. (R Exh.22) Before the final Review Panel met to consider Petitioner’s response, an incident involving Petitioner occurred on April 18, 2001, as cited above in Findings of Fact 5 through 25.

84. The recommended Special Provisional License was changed to a Revocation and a new Notice of Proposed Administrative Action containing a Revocation was issued to Petitioner. (TR 181, R Exh.33 ) Again, Petitioner was afforded the right to file a written response within fifteen (15) days indicating why Respondent should not take action against her license and Petitioner filed a response. (R Exh. 27 and 28) A final Review Panel met and made a decision to revoke the Petitioner’s License. (R Exh. 33 )

85. Respondent issued A Notice of Administrative Action to Petitioner on March 6, 2001. (R Exh. 34) The Notice contained both the Revocation of Petitioner’s License, the bases for Respondent’s Action and notice to Petitioner of her right to file a Petition for a Contested Case Hearing with the Office of Administrative Hearings.

86. The bases for Respondent’s action were the two substantiations of child neglect by DSS against Petitioner, her repeated violations of the child care requirements and her failure to comply with a corrective action plan. (TR 29-30, R Exh. 34) In addition, Respondent relied upon Petitioner’s false and misleading statements and behavior. (R Exh. 34)

Credibility

Respondent’s Witnesses

Respondent’s witnesses were credible and Petitioner presented no evidence that rebutted their credibility regarding the violations cited. (TR 74, 75, 76, 66, 67)

Petitioner’s Witnesses and Evidence

87. Petitioner’s Relationship with Children: Petitioner clearly cares about children and they about her, as is evidenced by the expressed desire of Ms. Shepherd’s daughter to stay at Petitioner’s home after the drinking incident. (TR 69)

88. When offered the opportunity to obtain information and assistance regarding supervision of children from Consultant Clark, Petitioner rejected it, indicating that she had already fixed the problems. (TR 96, R Exh. 7)

89. Petitioner’s Misstatements and Attempts to Mislead: At different points, Petitioner: denied that anyone at her child care home drank alcohol; denied that her husband drank alcohol; denied the purchase of beer in the presence of child care children; admitted the purchase of beer in the presence of child care children; and admitted that alcoholic - 14 -

beverages had been consumed at her Family Child Care home on a weekend during a party. (See, e.g., Finding of Fact No. 46-57 above)

90. On one occasion, Petitioner: initially misstated to Consultant Clark the number of children present, then stated that she forgot about two children in the care of her husband, then said the children’s mother should have picked them up, then finally admitted that she knew the children were there but didn’t tell the consultant because she knew she was exceeding the number allowed and would be cited for a violation. (See Finding of Fact No. 58 and 59 above)

92. Petitioner denied having failed to respond to the knocks by Ms. Wallen and Ms. Hopper on April 18, 2000, as well as having told those present to be quiet so that the consultants would not know they were there. (R Exh. 18,28)

93. Petitioner did not deny that the violations cited by the Division’s consultants had occurred. Petitioner did not deny that she failed to supervise or mention the presence of an infant left in the house for at least three hours, or to evacuate the child during a fire drill. (See, Finding of Fact 61(A) above)

94. With regard to the few violations which she did deny, she was not a credible witness. For example, she denied that her husband, Greg Lott either lived at the Family child care home or cared for the children.

95. Mr. Lott not only admitted living there at least part time, but was also actually observed caring for children by one of Respondent’s consultants. (See, e.g., TR 116, R Exh. 5)

96. Respondent’s Sister, Nichole Feaster: Ms. Feaster testified primarily with regard to the events of April 18, 2000. As noted above in Findings of Fact 5 through 11, the account of Respondent’s witnesses was credited in this regard. Ms. Feaster also testified regarding the quality of care received by her child at Petitioner’s family child care home. (TR 126-127) Ms. Feaster’s sincerity in this regard is not doubted, however, her personal belief that her child was well cared for does not eliminate the violations found and cited by Respondent, as set forth herein and in Respondent’s Notices of Administrative Action.

97. Grandparent, Stephen Degree: Mr. Degree was a highly credible witness with regard to his need for care for the grandchildren left motherless by a homicide and with regard to his belief that the care provided by Petitioner was of high quality. (TR 230-232 ) His testimony that the one complaint about use of alcohol at Petitioner’s home was made in retaliation for removal of a child from the home is credited. (TR 233-235) However, it should be noted that Respondent did not find merit to that complaint. (TR 246) Moreover, even had the complaint been made in retaliation against Petitioner, if found to be valid, the motive for its filing would not have eliminated the violation.

98. Child Nutrition Program Consultant Linda Timmons: Ms. Timmons’ testimony that she did not find Petitioner to have exceeded capacity on either of her two visits in the year - 15 -

2000 is credited, as is her statement that she did not observe Greg Lott caring for children or drinking beer in front of child care children. (TR 228) However, the fact that on those two occasions Ms. Timmons did not observe violations of the Child Care Act and Rules, does not eliminate or excuse those occasions on which Petitioner was found to have been in violation.

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 demonstrated knowledge and expertise in, and has the authority pursuant to N.C. Gen. Stat. § 110-102.2 and 105.2, to issue various types of administrative action against child care facilities for violations of the Child Care Act, including violations involving substantiations of child neglect.

4. Respondent followed its established procedures during the investigation, decision making process, issuance of a Notice of Proposed Administrative Action, review of Petitioner’s response to that Notice and issuance of its Notice of Administrative Action containing a Revocation of Petitioner’s License.

5. Petitioner’s permitting alcohol consumption in the presence of children and leaving a child unattended for an unknown period of time with no adult in the home and the DSS substantiation of neglect for supervision deficiencies, constitute neglect within the meaning of N.C. Gen. Stat. §110-105.2 and are violations of that statute.

6. Petitioner’s inability to reach an emergency contact to arrange alternative transportation for children does not excuse her violation of the statutory prohibition or the presence of more than five preschool children in a family child care home.

7. The direct observations by Consultants Hopper and Clark of Petitioner’s failure to properly supervise children on the occasions specified in the hearing in this matter and in Respondent’s Notice of Administrative Action constituted substantial evidence that Petitioner violated the Child Care Act and rules regarding supervision of children in her care.

8. Respondent had substantial evidence to support its decision that Petitioner knowingly and willfully enrolled more children in her family child care home than was permitted by law. - 16 -

9. Respondent had substantial evidence to support its decision that Petitioner knowingly and willfully maintained an enrollment on more than one occasion of more children in her family child care home than was permitted by law.

10. Respondent had substantial evidence to support its decision that Petitioner knowingly and willfully permitted more than eight (8) children to be present in her family child care home at one time, thus exceeding the capacity requirements of the Child Care Act.

11. Respondent had substantial evidence to support its decision that Petitioner repeatedly committed knowing and willful violations of the capacity requirements of the Child Care Act.

12. Respondent had substantial evidence to support its decision that Petitioner repeatedly committed knowing and willful violations of the limits on preschool aged children permitted in a family child care home.

13. Respondent had substantial evidence to support its decision that Petitioner committed numerous violations of the Child Care Act and rules as specified in the findings of fact above and in its Notice of Administrative Action revoking Petitioner’s License.

14. Respondent had substantial evidence to support its finding that Petitioner knowingly provided false information to Respondent.

15. Respondent had substantial evidence to support its decision to revoke Petitioner’s License.

16. Respondent’s actions in revoking Petitioner’s License were in accordance with law and procedure, within its authority and jurisdiction and neither arbitrary, capricious nor in error.

DECISION

THAT THE REVOCATION ISSUED BY RESPONDENT BE AFFIRMED.

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). - 17 -

NOTICE The Agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this Decision and 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 10 day of December, 2001.

______Sammie Chess, Jr. Administrative Law Judge