COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. Division of Administrative Law Appeals

Department of Early Education & Care,

Petitioner

v. Docket No. OC-07-1095

Alaina Joseph,

Respondent


Appearance for Petitioner:

Denise J. Karlin, Esq.

Department of Early Education & Care
51 Sleeper Street, 4th floor
Boston, MA 02210

Appearance for Respondent:

Alaina Joseph, pro se

115 Mashpee Court
New Bedford, MA 02740

Administrative Magistrate:

Maria A. Imparato, Esq.

RECOMMENDED DECISION

On September 12, 2007, the Department of Early Education and Care ("EEC") denied the Application for Department of Social Services ("DSS") Discretionary Approval for a family day care license filed by Alaina Joseph. Ms. Joseph filed a timely claim for an adjudicatory hearing. (Exs. 1, 2)

I held a hearing on June 30, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston.

I admitted documents into evidence. (Exs. 1 - 21) There are two tape cassettes of the hearing.

EEC presented the testimony of Michael Avery, Associate Commissioner for Field Operations in the Southeast Region of EEC; and Diana Phillips, a Family Child Care Supervisor for the Southeast Region.

Alaina Joseph testified on her own behalf, as did her sister, Wanda Jones.

FINDINGS OF FACT

1. Alaina Joseph was issued a Regular License to Provide Family Child Care Services at her home located at 324 Parker Street, Unit 2E, in New Bedford on September 18, 2006. (Ex. 3)

2. Ms. Joseph received discretionary approval from EEC for the license. The EEC Criminal Offender Record Information ("CORI") background check performed in or about May 2006 revealed a 1999 CORI issue with respect to Ms. Joseph's arrest for possession of cocaine. In 2006, EEC determined that Ms. Joseph's drug problem was no longer an issue, and so gave discretionary approval for the license. (Testimony, Avery)

3. On the application for a child care license that Ms. Joseph submitted in May 2006, she was asked whether she, or any person living in the home or regularly on the premises had any involvement with DSS. Ms. Joseph indicated, "Someone filed. Not determined, 51A not supported." In answer to the questions about whether she, or any person living in the home or regularly on the premises had ever had any findings of abuse or neglect with DSS, Ms. Joseph answered, "no." (Ex. 4, p. 4)

4. In or about July 2007, Ms. Joseph informed EEC that she was moving. Ms. Joseph became subject to a new background record check, to be performed in accordance with new regulations effective in November 2006 which added a DSS background check to the CORI check. (Testimony, Avery)

5. The new background record check revealed to EEC the presence of four supported 51B reports issued by DSS with respect to Ms. Joseph: March 5, 1999 for neglect; February 7, 2003 for neglect; November 21, 2006 for neglect; and March 12, 2007 for physical abuse. It revealed one supported 51B report issued by DSS with respect to Ms. Joseph's husband Vincent: November 21, 2006 for physical abuse. (Testimony, Avery; Exs. 5, 7, 9,10,11,12)

6. By letter of July 24, 2007, EEC notified Ms. Joseph that both she and her husband had a DSS background history that could disqualify her from holding a child care license. EEC asked both Ms. Joseph and her husband to submit a completed Family Child Care Provider Request for Discretionary Approval of DSS Background Information. (Exs. 5, 7)

7. On August 21, 2007, Ms. Joseph submitted the Request for Discretionary Approval, indicating that DSS charged her with neglect because her daughter had not been attending school and had been suspended several times. Ms. Joseph indicated that her daughter was no longer having a problem, and the DSS case would be closing in August. Ms. Joseph appended two letters from day care parents attesting to her good care of their children, and a letter explaining that Vincent Joseph no longer lived with Ms. Joseph. (Ex. 6)

8. On August 21, 2007, Vincent Joseph submitted a Request for Discretionary Approval by a Household Member or Person Regularly on the Premises. Mr. Vincent indicated that DSS supported a finding of physical abuse against him on November 21, 2006 because he "tapped" his step-daughter when she came in late, and his step-daughter called the police. (Ex. 8)

51B reports

9. The March 1999 51B supported neglect of all three of Ms. Joseph's children (ages 9, 8, and 5) based on Ms. Joseph's use of cocaine, arrest on drug charges, and positive urine screen. (Ms. Joseph received a CORI discretionary approval for a license in 2006 based on evidence that she was no longer involved with drugs.) (Ex. 9, Testimony, Avery)

10. The February 2003 51B supported neglect of all four of Ms. Joseph's children (ages 13, 12, 9 and 2) by Ms. Joseph and her husband based on "concerns of domestic violence" witnessed by the children. The children were deemed to be at "moderate risk." (Ex. 10)

11. The November 2006 51B supported neglect of three of Ms. Joseph's children (ages 15, 12 and 5) by Ms. and Mr. Joseph for exposing the children to violence in the home, and physical abuse of Ms. Joseph's 15 year old daughter by Mr. Joseph because he grabbed her face during an argument. (Ex. 11)

12. Also notable in the November 2006 51B report is Ms. Joseph's 15 year old daughter's assertion that Ms. Joseph had asked her to lie to DSS about a previous altercation the daughter had with Mr. Joseph, and that when DSS went to Ms. Joseph's home on November 20, 2006, the investigator found Ms. Joseph's 12 year old son caring for his younger brother and two day care children, one of whom was two years old, and one of whom was nine months old. Ms. Joseph arrived home 40 minutes later. (Ex. 11, pp. 4, 7)

13. The March 2007 51B supported physical abuse of Ms. Joseph's 15 year old daughter by Ms. Joseph when she slapped her daughter's face during a verbal argument. (Ex. 12)

14. There were nine additional unsupported decisions on Ms. Joseph and her husband between 1998 and 2006. (Ex. 1)

15. The EEC Discretionary Review Team reviewed all of the information it had gathered through the DSS background record check, together with the information submitted by Ms. Joseph and her husband. The team considered the fact that Ms. Joseph had failed to notify EEC of the 51Bs issued in 2006 and 2007; the fact that Ms. Joseph had offered false and misleading information on her 2006 licensing application; the recent time period during which the 51Bs were issued; the failure of Ms. Joseph to provide any evidence of rehabilitation; concerns about the stability of Ms. Joseph's home; and violations of the EEC family child care licensing regulations that jeopardize the health and safety of childcare children. The team recommended that the discretionary approval be denied. (Ex. 1) Ms. Joseph appealed. (Ex. 2)

16. On May 3, 2007, Ms. Joseph moved to 115 Mashpee Court in New Bedford with her 16 year old daughter, 13 year old son, and 6 year old son. Her husband's name does not appear on the lease. (Ex. 19)

17. On February 5, 2008, Ms. Joseph was referred to Work Inc., a vocational rehabilitation agency. (Ex. 16)

18. By letter of February 27, 2008, a parent of one of Ms. Joseph's day care children opined that Ms. Joseph is a good day care provider. (Ex. 17)

19. Ms. Joseph completed 16 hours of training on April 12, 2007 in the Success Program for Children: Mentoring, funded through a grant by EEC. (Ex. 18)

CONCLUSION AND RECOMMENDATION

I recommend that the decision of EEC to deny the request of Alaina Joseph for DSS Discretionary Approval be affirmed.

Under 102 CMR 1.05 (1), any applicant "shall have a background free of conduct, which, in the judgment of [EEC], bears adversely upon [the] applicant's … ability to care for children." Such conduct includes allegations of abuse or neglect of a child, supported in a 51B report, under 102 CMR 1.05 (1) (a) 4.

A CORI check and a DSS Background Record Check shall be performed on all candidates for positions that have the potential for unsupervised contact with children, under 606 CMR 14.02, 14.05.

If the DSS Background Record Check does not reveal records naming the candidate as the person responsible for abuse or neglect of a child, the finding will be "no record," under 606 CMR 14.05.

All DSS Background Record Check findings other than "no record" are considered "discretionary disqualifications" under 606 CMR 14.09 (3) (e). The four 51B reports that surfaced as a result of the DSS Background Record Check are therefore considered discretionary disqualifications. A candidate shall be ineligible to be licensed as a day care provider if she has been named as the person responsible for abuse or neglect of a child in a supported 51B report unless EEC grants discretionary approval under 606 CMR 14.10 (2) (b).

To determine whether to grant discretionary approval, EEC, through its Background Record Check Review Team, must determine "if the candidate poses an unacceptable risk of harm to children within the position sought." To make that judgment, EEC shall consider the following factors: the time since the acts of abuse or neglect occurred; the age of the candidate at the time the neglect and abuse occurred; the seriousness and specific circumstances of the abuse or neglect; the relationship of the specific nature of the abuse or neglect to the nature of the work to be performed; the number of abusive or neglectful acts; any relevant evidence of changed circumstances, rehabilitation or lack thereof; and any other relevant information, in accordance with 606 CMR 14.11 (3).

The review team also considered the information submitted by Ms. Joseph and by her husband, in accordance with 606 CMR 14.11 (4).

The review team considered the fact that the 2006 and 2007 51B reports were recent, and that there were four supported 51B reports between 1999 and 2007. Ms. Joseph failed to report to EEC, after she was licensed in 2006, her ongoing history with DSS, in violation of 102 CMR 8.15 (4). Ms. Joseph submitted false and misleading information on her 2006 initial application for licensure by failing to disclose the 51B from 2003. Ms. Joseph left two day care children alone with her twelve year old son, in violation of 102 CMR 8.10 (1), which jeopardized the health and safety of children in care. Ms. Joseph lived in a situation where her children were exposed to domestic violence. Ms. Joseph has not submitted any evidence of rehabilitation.

Ms. Joseph argues that she no longer lives with her husband, does not use drugs and loves children. She argues that she deserves a chance to get her license back.

Although Ms. Joseph is apparently making major changes in her life by no longer living with her husband, this alone is not sufficient to demonstrate that she does not pose an "unacceptable risk of harm to children." Particularly troubling is Ms. Joseph's lack of good judgment in leaving two young day care children in the care of her 12 year old son; her false and misleading statements on her 2006 license application; her failure to report her ongoing DSS and police involvement to EEC; and the repeated findings of neglect and abuse in the 51B reports.

It is up to EEC to determine whether an applicant has a background free of conduct which, in the judgment of [EEC], bears adversely upon an applicant's ability to care for children. EEC has considered all relevant evidence and has concluded that Ms. Joseph has a background that bears adversely on her ability to care for children, and denied her request for discretionary approval because she poses an unacceptable risk of harm to children. I cannot say the EEC has abused its discretion in reaching its conclusion. I decline to substitute my judgment for that of EEC in the absence of an abuse of discretion.

I recommend that the decision of EEC to deny Ms. Joseph's request for
discretionary approval to be a licensed day care provider be affirmed.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 8/18/08


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