State of North Carolinain the Office Of

State of North Carolinain the Office Of

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STATE OF NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF JOHNSTON

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Dianetta Foye,

Petitioner,

v.

Division of Child Development, Department of Health and Human, Services,

Respondent.

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07 DHR 1440

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Dianetta Foye,

Petitioner,

v.

Division of Child Development,

Department of Health and Human Services,

Respondent.

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07 DHR 2020

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DECISION

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This matter was heard before the Honorable Shannon R. Joseph, Administrative Law Judge, on 12 March 2008 in Fayetteville, North Carolina. At the conclusion of the evidence, the record was held open until 6 May 2006 pending submission by Respondent of a proposed decision.

APPEARANCES

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For Petitioner:

Dianetta Foye, pro se

135 Rosie Drive

P.O. Box 765

Four Oaks, NC 27524

For Respondent:

North Carolina Department of Justice, by

Susannah B. Cox, Esq. and

Alexandra Gruber, Esq.

Assistant Attorneys General

9001 MailServiceCenter

Raleigh, North Carolina27699-9001

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PROCEDURAL HISTORY

This Court, after considering Respondent’s Motion to Dismiss case number 07 DHR 2020, denied the Motion and heard evidence in 07 DHR 1440 and 07 DHR 2020.

APPLICABLE STATUTES AND RULES

N.C. Gen Stat. §§ 110-85, -90, -91;10A N.C.A.C. 09 .0712, .0714.

ISSUE

Whether Respondent acted erroneously or otherwise substantially prejudiced Petitioner’s rights when, by Notice of Administrative Action dated 15 August 2007, Respondent revoked Petitioner’s license to operate Little Kings and Queens day care center in Four Oaks, North Carolina.

EXHIBITS

Petitioner’s exhibits1–9 were admitted into evidence. Respondent’s exhibits 1, 5, 7–12, 17–25 and 33–34 were admitted into evidence.

FINDINGS OF FACT

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned 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 witness, 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. From the sworn testimony of witnesses, the undersigned makes the following:

FINDINGS OF FACT

Respondent Division of Child Development

  1. Respondent Division of Child Development (the “Division”) is an administrative agency of North Carolina State Government operating under the laws of the State of North Carolina.
  1. There are approximately ninety-two hundred (9200) child care facilities in North Carolina.
  1. The Division issues approximately three-hundred fifty (350) administrative actions each year. Around thirty (30) of those actions are revocations.
  1. To assist in determining if a provider has complied with child care requirements, the Division maintains a compliance history for each provider. At time relevant to this case, child care providers were required to maintain a compliance score of sixty percent (60%) to maintain licensure.
  1. Paula Davis has been a consultant with the Division for seven (7) years. Ms. Davis previously owned and operated a child care facility for twelve (12) years and holds a Bachelor of Science degree in psychology with a minor in sociology.
  1. As a consultant with the Division, Ms. Davis issues licenses to child care facilities, monitors for compliance, investigates complaints and investigates illegal child care arrangements.
  1. Lora Bedford is a licensing supervisor with the Division and has been with the Division since June 1990. Ms. Bedford holds a degree in home economics with a major in child development and family relations and a minor in psychology.
  1. Ms. Bedford supervises consultants in Johnston, Harnett, Sampson and DuplinCounties.
  1. Tamara Barnes is the Licensing Enforcement Program Manager for the Division and has worked at the Division for fifteen (15) years. Previously she worked in child care for fifteen (15) years and received her undergraduate degree from the University of North Carolina in Chapel Hill in psychology.
  1. Ms. Barnes oversees the administrative action and contested case process for the Division and also helps with prosecuting illegal child care operations.
  1. Respondent has demonstrated extensive knowledge and expertise in the enforcement of North Carolina rules and laws relating to family child care homes and the administrative processes used in enforcing such rules and laws.
  1. The initial procedure for issuing a revocation is for the consultant and supervisor to first discuss the concerns they have about a provider and then prepare aproposed action. If the action will change the status of the provider’s license, it is proposed to an Internal Review committee in Raleigh.
  1. The Internal Review committee considers the action for consistency with other similar actions and to ensure the action is appropriate for the circumstances. When the committee decides to issue a proposed action, it is sent to the provider who then has fifteen (15) days to respond. The Internal Review Panel then conducts a second review prior to the issuance of a final action. The Panel considers both the provider’s response and the consultant’s comments in the second review.
  1. The Division maintains a “matrix” of administrative actions statewide to ensure that administrative actions are issued consistently throughout the State of North Carolina.

Petitioner Foye and the Little Kings and QueensCenter

  1. Dianetta Foye is the owner and operator of Little Kings and Queens day care center (“Little Kings and Queens” or “the center”). At all times relevant to this matter, Petitioner was the licensee of Little Kings and Queens subject to Article 7 of Chapter 110 of the North Carolina General Statutes.
  1. Little Kings and Queensreceived a license to operate as a one-star center in June 2004 with a capacity of fifteen (15) children per shift. The center’s capacity was increased to nineteen (19) children per shift in June 2006.
  1. Petitioner offered Juanita Ingram as a witness. Ms. Ingram was an employee at Little Kings and Queens for approximately two years.

Basis For The Revocation Petitioner’s Day Care License

  1. The Division issued the final revocation of Petitioner’s day care license on 15 August 2007.
  1. The basis for the revocation was the “history of violations of child care requirements, including repeated violations regarding staff/child ratios, supervision, use of unapproved space, and staff training.” The Division considered its documents regarding the facility for 18 August 2004 through 8 May 2007.
  1. Paula Davis conducted all of the visits to the center that were referenced in the revocation.
  1. Petitioner repeatedly failed to maintain the required staff-child ratio in the center. On 23 August 2005, there was one (1) caregiver with seven (7) children ages one to school age when there should have been two (2) teachers. On 15 March 2006, there was one (1) teacher with eight (8) children ages one to school age when there should have been two (2) teachers. On 14 March 2007, seven (7) children ages two (2) and under were in a group with one (1) teacher when there should have been two (2) teachers present.
  1. Paula Davis cited these staff-child ratio violations and explained them to Petitioner both orally and in her documentation.
  1. The physical layout of the center did not allow for supervision of any classroom from the office, hallway or a different classroom. This meant that a teacher had to be present in each classroom to be personally supervising the children.
  1. On multiple occasionsall the teachers were in the office area of the facility while children were alone in the classrooms. Ms. Davis issued violations for the teachers not supervising the children.
  1. Petitioner repeatedly used unapproved space to care for children. Petitioner began using an office space adjacent to her facility after Ms. Davis explicitly told her she could not use that space.
  1. Even after receiving citations for using the unapproved office space, Petitioner continued to do so and actually increased the enrollment for the center. Between 14 March 2007 and 3 April2007 enrollment at the center increased from twenty-eight (28) to thirty-five (35) children.
  1. On 23 August 2005, Petitioner falsified information by telling Ms. Davis that her daughter was seventeen (17) when, in fact, her daughter was fifteen (15). At the time, Petitioner’s daughter was outside the facility with a group of children and no adult was with them.
  1. Ms. Davis offered Petitioner technical assistance, was available to answer questions, and encouraged Petitioner to achieve a higher compliance rating. Petitioner repeatedly told Ms. Davis that she understood the cited violations and she would fix the problems.
  1. During the final visit before revocation on 8 May 2007, Ms Davis cited nine (9) violations, six (6) of which were repeated from prior violation reports.
  1. Petitioner submitted responses to Respondent’s Request for Admissions. The admissions included in Petitioner’s responses would have amounted to approximately one hundred thirty-five (135) points on her compliance history. These admissions alone would likely be enough to support a revocation of Petitioner’s license.
  1. In May 2007, the minimum required compliance history was sixty percent (60%).
  1. As of 8 May 2007, the thirty-six (36) month compliance history for Petitioner’s center was negative thirty-fivepercent (-35%).
  1. Most revocations are issued by the Division when there is willful noncompliance with the child care rules over a period of time.
  1. When there is willful, continual and hazardous noncompliance, the Division has no other choice but to issue a revocation.
  1. Petitioner, as the day care owner, is responsible for understanding the day care rules and must ensure that anyone responsible for running the cay care knows all the rules and regulations and how to maintain compliance.
  1. Paula Davis and Lora Bedford reviewed Petitioner’s compliance history, discussed what steps were necessary and submitted a proposed revocation of Petitioner’s license to the regional manager in Raleigh.
  1. Respondent’s Review Panel conducted two (2) separate reviews regarding the appropriateness of revoking Petitioner’s child care license. Based on these reviews, Respondent determined that revocation was the appropriate penalty for Petitioner’s failure to comply with child care statutes and rules regarding staff/child ratios, supervision, use of unapproved space, and staff training.
  1. The Review Panel’s decision was unanimous.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, and giving due regard to the demonstrated knowledge and expertise of the agency with respect to facts and inferences within its specialized knowledge, 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.
  1. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder and the notice of hearing was proper.
  1. Petitioner bears the burden of proof to demonstrate that Respondent acted erroneously.
  1. 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. See N.C. Gen. Stat. § 110-85.
  1. Petitioner’s center is subject to the North Carolina child care statutes and rules.
  1. Petitioner was familiar with the applicable child care statutes and rules regarding the operation of a child care center.
  1. For children ages zero (0) to twelve (12) months, the ratio of staff to children must be one (1) to five (5) and the maximum group size is ten (10) children. For children aged one (1) to two (2) years, the ratio of staff to children must be one (1) to six (6) with a maximum group size of twelve (12). 10A N.C.A.C. 09 .0712(a).
  1. “Children shall be adequately supervised at all times. Adequate supervision shall mean that staff interact with the children while moving about the indoor or outdoor area, and are able to hear and see the children at all times, except when emergencies necessitate that direct supervision is impossible for brief periods of time.” 10A N.C.A.C. 09 .0714(f).
  1. The North Carolina Department of Health and Human Services, Division of Child Development may revoke the license of any child care facility which “demonstrates a pattern of noncompliance” with the child care statutes and rules.
  1. Petitioner repeatedly violated the child care statutes and rules by failing to maintain the required staff-child ratio in the center.
  1. Petitioner repeatedly violated the child care statutes and rules by failing to provide adequate supervision for the children at all times.
  1. Petitioner repeatedly violated the child care statutes and rules by using unapproved space to care for children.
  1. Petitioner demonstrated a pattern of noncompliance by failing to maintain the minimum requirement of a sixty percent (60%) thirty-six (36) month compliance history at the center. The pattern of noncompliance was blatant, willful, continuous and hazardous to children thereby requiring the Division to revoke the license.
  1. Petitioner demonstrated an inability to achieve compliance by repeating violations of the child care rules after receiving specific advice and assistance from the Division’s consultant.
  1. The consultant and her supervisor reasonably determined that the facility’s record should be considered by the Division’s management personnel and the Internal Review Panel. These field staff had just cause to recommend revocation of Petitioner’s license based on the facility’s negative thirty-five percent (-35%) compliance history and their personal knowledge of the facility.
  1. Respondent followed proper procedures in this case by first submitting the recommended action to the Internal Review Panel and then issuing a proposed action to the Petitioner and considering her response to the proposed action in the second Internal Review panel. Based on reviews of all the materials, the panel determined that revocation was the appropriate penalty for Petitioner’s demonstrated inability to achieve and maintain compliance with the child care rules.
  1. In this case the Respondent acted consistently with other revocations it has issued.
  1. Petitioner did not prove by a preponderance of the evidence that the Division had (1) Exceeded its authority or jurisdiction; (2) Acted erroneously; (3) Failed to use proper procedure; (4) Acted arbitrarily or capriciously; or (5) Failed to act as required by law or rule.

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

DECISION

Respondent’s decision to revoke Petitioner’s 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. Gen. Stat. § 150-36(a). The agency is required by N.C. Gen. Stat. § 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 7th day of May, 2008.

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Shannon R. Joseph

Administrative Law Judge

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