Opinion
No. 2367 C.D. 2014
07-09-2015
Milagros Santiago, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Milagros Santiago (Petitioner) petitions for review of a December 4, 2014 order of the Chief Administrative Law Judge of the Bureau of Hearings and Appeals (Bureau) of the Department of Public Welfare (DPW) adopting the recommendation of an Administrative Law Judge (ALJ) and upholding DPW's refusal to renew Petitioner's certificate of registration (license) to operate a family child day care home (FCCH) under the Public Welfare Code. We affirm.
Subsequent to the filing of petition for review, the Department of Public Welfare became the Department of Human Services. See Act of September 24, 2014, P.L. 2458, 62 P.S. § 103 (effective November 24, 2014).
Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§ 101-1503.
On July 30, 2010 DPW issued a letter informing Petitioner that it had made a preliminary decision to refuse to renew her license to operate a FCCH based upon noncompliance with DPW regulations. (Record Item (R. Item) 2, Denial Letter.) By August 3, 2010 letter, Petitioner appealed DPW's refusal to renew her license to the Bureau. (R. Item 2, Appeal Letter.) A hearing was held before the ALJ on September 22, 2014, at which Petitioner, who was represented by counsel, appeared and testified. (R. Item 7, Hearing Transcript (H.T.).) Prior to the hearing, Petitioner and DPW entered into a joint stipulation of facts, which was entered into the record as an exhibit before the ALJ and which the ALJ relied upon in part in issuing the determination in this matter. (R. Item 3, Exhibits - Stipulation; R. Item 4, ALJ Determination at 2 n.1; R. Item 7, H.T. at 6.)
A FCCH, also known as a "Family day care home", see Section 1070 of the Public Welfare Code, 62 P.S. § 1070, is defined in DPW regulations as "[a] home other than the child's own home, operated for profit or not-for-profit, in which child day care is provided at any one time to four, five or six children unrelated to the operator." 55 Pa. Code § 3290.4.
On November 24, 2014, the ALJ issued a determination, including findings of fact and legal conclusions, and recommended that Petitioner's appeal to the Bureau be denied. (R. Item 4, ALJ Determination.) On December 4, 2014, the Bureau issued a final order adopting the ALJ's recommendation in its entirety, including the following findings of fact:
The ALJ stated in the determination that the findings of fact that do not include citations to the hearing transcript are taken verbatim from the Joint Stipulation of Facts. (R. Item 4, ALJ Determination at 2 n.1.)
1. [Petitioner], held a certificate of registration to operate a FCCH at [Petitioner's home], pursuant to Article X(c) of the Public Welfare Code, 62 P.S. §§ 1070 et seq., and 55 Pa. Code Ch. 3290.
2. The Certificate of Registration to operate a FCCH at [Petitioner's home] was held solely in the name of [Petitioner].
3. [Petitioner's home] is a parcel of real estate deeded solely in [Petitioner's] name, which she acquired on July 22, 2005. (Exhibit ALJ-1)
4. On May 5, 2010, [DPW] received an application dated April 2, 2010 from [Petitioner] requesting to renew the certificate of registration to operate a FCCH at [Petitioner's home]. (Exhibit ALJ-4)
5. On April 20, 2010, the Central Region Office of Children, Youth, and Families (OCYF) received an oral report of suspected abuse of a child (known as "G.V.") by [Petitioner's] husband ("Husband").
6. On April 22, 2010, the Lancaster County Children and Youth Social Service Agency (LCCYSSA) implemented a Safety Plan whereby Husband was to have no unsupervised contact with [Petitioner's] adopted children. (Exhibit ALJ-2)
7. On April 27, 2010, the LCCYSSA implemented an amended Safety Plan whereby Husband was to have no contact with [Petitioner's] adopted children, any other children in the home and he was to leave [Petitioner's] home and move to another residence. (Exhibit ALJ-3)
8. On June 8, 2010, a Criminal Complaint was filed by Lancaster City Police Detective Deeter against Husband which included the charges which were the basis for the convictions set forth in [finding of fact] 14 below.
9. By letter of July 30, 2010, [DPW] informed [Petitioner] of a preliminary decision to refuse to renew her registration certificate. (Exhibit ALJ-4)
10. The underlying alleged factual basis for the refusal to renew [Petitioner's license] was a report of child sexual abuse by Husband against G.V., a female born in October of 1995.
11. The application dated April 2, 2010 from [Petitioner] requesting to renew the [license] to operate a FCCH at [Petitioner's home] listed Husband as a resident with [Petitioner] in the FCCH at [Petitioner's home]. (Exhibit ALJ-4)
12. On June 18, 2010, following an investigation, OCYF named Husband the perpetrator in an Indicated report of child abuse. Husband timely appealed the Indicated report of child abuse to the [Bureau] at docket no. 087-10-0040.
13. By letter of August 3, 2010, received August 6, 2010, [Petitioner], through counsel, timely appealed the refusal to renew the [license]. (Exhibit ALJ-5)
14. On December 20, 2012, Husband was convicted of the following criminal acts against G.V.: (Exhibit ALJ-6)
a. Rape of a Child, 18 Pa. C.S. § 3121
b. Involuntary Deviate Sexual Intercourse, 18 Pa. C.S. § 3123
c. Indecent Assault of a Person Less than 13 Years of Age, 18 Pa. C.S. § 3126
d. Indecent Exposure, 18 Pa. C.S. § 3127
e. Corruption of Minors, 18 Pa. C.S. § 6301
15. The criminal acts took place in several locations between 2000 and 2008, including the FCCH at [Petitioner's home], when G.V. was without supervision by her parents.
16. The criminal acts took place while [Petitioner] was away from the FCCH with some of the younger children. [DPW] has no evidence that [Petitioner] was present at the FCCH when the criminal acts took place or had any knowledge of them.
17. When [Petitioner] would leave the FCCH during operating hours, she would leave the children, including G.V., in the care of her sister. (N.T. 30)
18. [Petitioner's] sister was not an employee of [Petitioner's] FCCH. (N.T. 34)
19. On November 27, 2013, based on the criminal convictions noted in [finding of fact] 14, supra, OCYF changed the status of the report of child abuse from "indicated" to "Founded".
20. By letter of December 12, 2013, [DPW] informed Husband that the status of the report of child abuse had been changed from "Indicated" to "Founded".(R. Item 4, ALJ Determination, Findings of Fact (F.F.) 1-23.)
21. By Order of March 26, 2014, the [Bureau] dismissed Husband's appeal of the child abuse report at docket no. 087-10-0040.
22. On July 10, 2014, following a home study and a hearing, [Petitioner] was approved to adopt two children by the Court of Common Pleas of Lancaster County.
23. The testimony of the Appellant was credible.
Based on these facts, the ALJ concluded that DPW was permitted to refuse to renew Petitioner's license because she was grossly negligent in her operation of the FCCH, specifically stating: "Here, a child, who was a client of the FCCH, was raped and sexually assaulted multiple times at the facility.... While the hearing record reflects that these acts occurred while [Petitioner] was away from the facility, the hearing record also reflects that she was the sole proprietor of the FCCH. As such, this child was raped on her watch...." (R. Item 4, ALJ Determination at 8.) Following the Bureau's final order, Petitioner timely petitioned this Court for review.
Our scope of review of a final order of the Bureau is limited to determining whether constitutional rights were violated, whether an error of law was committed, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Burroughs v. Department of Public Welfare, 606 A.2d 606, 608 (Pa. Cmwlth. 1992). Substantial evidence is evidence which "so preponderates in favor of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent evidence and reasonable inferences drawn therefrom." York County Children & Youth Services v. Department of Public Welfare, 668 A.2d 185, 188 (Pa. Cmwlth. 1995). --------
Before this Court, Petitioner argues that DPW failed to establish that she operated her FCCH in a negligent manner because the evidence demonstrated that she was without knowledge of her husband's ongoing abuse of a child at the FCCH. Petitioner contends that rather than refusing to renew her license for negligence, DPW has held her strictly liable for the conduct of her husband and, therefore, improperly denied renewal of her license to operate the FCCH. DPW argues that it is not required to demonstrate that Petitioner had knowledge of the abuse to sufficiently demonstrate negligence warranting its refusal to renew her license.
The Public Welfare Code provides that DPW shall refuse to renew a license for, inter alia: (i) noncompliance with department regulations or (ii) gross incompetence, negligence, or misconduct in operating the facility. Sections 1079(b)(1) and (4) of the Public Welfare Code, 62 P.S. § 1079(b)(1) & (4); see also 55 Pa. Code § 3290.12(c)(1) & (4). The Public Welfare Code also provides that DPW shall refuse to renew a license for mistreating or abusing individuals cared for in the facility. 62 P.S. § 1079(b)(5); see also 55 Pa. Code § 3290.12(c)(5). To be clear, DPW has not refused to renew Petitioner's license on the basis that she abused children within her care; instead, DPW has based its refusal to renew Petitioner's license on the grounds that her violation of its regulations and negligence allowed for the abuse of children within her care at the FCCH by another.
It is well-settled that DPW may refuse to renew or may revoke a license to operate a FCCH or other facility for even a single violation of its regulations. Nancy Hadlock's Family Child Care Home v. Department of Public Welfare, 103 A.3d 851, 857 (Pa. Cmwlth. 2014); Altagracia De Pena Family Day Care v. Department of Public Welfare, 943 A.2d 353, 356 (Pa. Cmwlth. 2007). It is also well-settled that while DPW has the discretion to permit a licensee to take corrective action, it is not required to do so before revoking or refusing to renew a license. KC Equities v. Department of Public Welfare, 95 A.3d 918, 930-931 (Pa. Cwmlth. 2014); Altagracia, 943 A.2d at 356; Burroughs v. Department of Public Welfare, 606 A.2d 606, 608 (Pa. Cmwlth. 1992).
The facts found by the ALJ demonstrate that G.V. was raped over a period of eight years by Petitioner's husband and that this egregious abuse took place at the FCCH while Petitioner was responsible for G.V. and other children. (R. Item 4, ALJ Determination, F.F. ¶¶14-15; see also R. Item 3, Exhibits - Stipulation, ¶¶14-16.) The facts further demonstrate that Petitioner left G.V. and other children for whom she was responsible within the care of an adult neither licensed by DPW nor employed by Petitioner. (R. Item 4, ALJ Determination, F.F. ¶¶16-18; see also R. Item 3, Exhibits - Stipulation, ¶16.) The fact that the ALJ found Petitioner credible that she was unaware of the abuse is immaterial; DPW merely had to show that the abuse occurred while G.V. was entrusted to Petitioner's care. Miller Home Inc. v. Department of Public Welfare, 556 A.2d 1, 4 (Pa. Cmwlth. 1989) (owner/operator's lack of knowledge of the abuse of residents was "immaterial" to a determination that evidence of abuse warranted revocation); see also Aaron's Boarding Home v. Department of Public Welfare, 541 A.2d 63, 65 (Pa. Cmwlth. 1988).
Petitioner's argument that this Court's holding in Gibbs v. Department of Public Welfare, 947 A.2d 233 (Pa. Cmwlth. 2008), counsels otherwise is unavailing. In Gibbs, we concluded that the FCCH licensee was not negligent when a child in her care wandered across a dead-end road into a neighbor's yard while the licensee was inside the home speaking with a parent. Id. at 234. The licensee in Gibbs had stepped away for three minutes and had done so because she had left the children under the supervision of an adult staff-member. Id. at 235, 237. In the instant matter, Petitioner had a history of leaving the children under her supervision with her sister, who was not a staff-member, or as the ALJ concluded "whoever was at the FCCH when the [Petitioner] needed to leave." (R. Item 4, ALJ Determination, F.F. ¶¶17-18 & at 9.) In addition, the facts here do not demonstrate a single instance of a licensee's failure to supervise the children within the licensee's care or to ensure the safety of the children entrusted to the licensee. The facts here demonstrate that a child under Petitioner's supervision was raped over a span of eight years by Petitioner's husband, including while the child was entrusted to Petitioner's care by virtue of Petitioner's license to operate a FCCH.
It is also of no moment that Petitioner's husband will no longer be able to abuse children within her care. For purposes of a license revocation or refusal to renew, the material question is whether abuse has taken place rather than the propensity for the abuse to recur. Altagracia, 943 A.2d at 356 ("Corrective action taken after a regulatory violation is irrelevant for purposes of determining whether a violation occurred."); Aaron's Boarding Home, 541 A.2d at 65 ("Where a violation is as egregious as the one established here, it would not be reasonable to require an opportunity to correct prior to revocation.").
DPW regulations define "supervise" as "[t]o be present in the child care facility with the children or with the facility person under supervision. Supervision is critical oversight in which the supervisor can see, hear, direct and assess the activity of the supervisee." 55 Pa. Code § 3290.4. The evidence here unequivocally demonstrates that Petitioner, the licensee and sole proprietor of the FCCH, failed in her duty to provide this "critical oversight" and that this failure led to what the ALJ concluded was "[s]hort of having a child die in the facility, [ ] the most egregious violation that can occur, both in terms of [DPW] regulations and the well-being of children in one's care." (R. Item 4, ALJ Determination at 8.) We agree.
Accordingly, substantial evidence of the repeated, egregious abuse suffered by a child entrusted to Petitioner's care and supervision at the FCCH, despite her credible lack of knowledge, was sufficient to establish negligence warranting the revocation of Petitioner's license. The order of the Bureau is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 9th day of July, 2015, the order of the Chief Administrative Law Judge of the Bureau of Hearings and Appeals of the Department of Public Welfare in the above-captioned case is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge