Decision  DEEC v. Santana, OC-24-0620

Date:	07/25/2025
Organization:	Division of Administrative Law Appeals
Docket Number:	OC-24-0620

• Petitioner: Agrimilda Rodriguez Santana
• Respondent: Department of Early Education & Care
• Appearance for Petitioner: Agrimilda Rodriguez Santana, pro se
• Appearance for Respondent: Leah Potash, Esq.
• Administrative Magistrate: Melinda E. Troy, Esq.

Summary of Decision

The Petitioner applied to the Department of Early Education and Care (“EEC”) for a license to open a family childcare program.  The EEC conducted a background check and learned that the Petitioner was the subject of a G.L. c. 119, § 51B report containing four “supported” allegations of neglect in 2015 and related criminal charges, although those were never prosecuted.  The EEC concluded that the Petitioner is not a “suitable” family childcare candidate.  I recommend that the EEC reverse that decision because the Petitioner has presented “clear and convincing evidence demonstrating [her] suitability  … in light of the concern for children’s safety.” 606 CMR 14.12(e). 

Decision

Agrimilda Rodriguez Santana (“the Petitioner” or “Ms. Rodriguez”) appeals a determination by the Department of Early Education and Care (“EEC”) that she is not a “suitable”[1] “family childcare candidate.”  Ms. Rodriguez submitted a notice of claim and requested an adjudicatory hearing concerning the EEC’s determination.  The matter was referred to the Division of Administrative Law Appeals (“DALA”).   

I held an in-person hearing on February 5, 2025. The hearing was digitally recorded. I admitted the Petitioner’s Exhibits 1-17 (referred to in this decision as “P1-P17”) and the Respondent’s Exhibits 1-10 (“R1-R10”) into evidence.  I granted the Respondent’s request to impound Exhibit R8.  After the hearing, I added to the record Exhibit R11, the Petitioner’s Notice of Claim.   A list of these exhibits is included as an addendum at the end of this decision.     

Maria Morales, an EEC Background Record Check Unit specialist, testified on behalf of the EEC.  Ms. Rodriguez represented herself and testified on her own behalf. She also offered the testimony of Hiliana Santos, J.D. and Samson Kefei, Esq.  Both parties submitted written closing memoranda, after which the record closed.

LEGAL FRAMEWORK

In or around October 2024, Ms. Rodriguez applied to the EEC for a family childcare license, seeking to provide childcare services out of her own home.  (Exhibit R1.) Since 2005, the EEC has been the agency responsible for, among other things, the licensing of early education and care programs.  G.L. c. 15D, §§ 7-8.  The EEC’s mission is to support children in their development as lifelong learners and contributing members of their community.  606 CMR 7.01.  In accordance with its mission, the EEC has developed specific regulations to be met by all providers of early care and education.  Id.

Family childcare is one type of program that the EEC licenses and oversees.  606 CMR 7.03(5).  “Family childcare” is defined, in relevant part, as “temporary custody and care provided in a private residence during part or all of the day for no more than ten children under 14 years old.”  606 CMR 7.02. When an individual applies for a family childcare license, the EEC is authorized to conduct a Background Record Check (“BRC”).  A BRC is a review of certain information, including, but not limited to (if applicable), the individual’s history of involvement with the Department of Children and Families[2] (“DCF”), which is a separate Commonwealth agency that is authorized to investigate reports of child abuse and neglect.  606 CMR 14.05(2)(a).  Depending on the results of the BRC, an applicant may be found to be eligible for licensure or the applicant may be disqualified from licensure.

There are three types of disqualification: mandatory disqualification, presumptive disqualification, and discretionary disqualification.  An applicant “shall have a discretionary disqualifying background if the BRC discloses either certain criminal charges or… (c) [t]hey have been found to be the person responsible for the abuse or neglect of a child….”  606 CMR 14.10(6).  If an applicant’s BRC reveals a discretionary disqualifying background event, the individual is afforded an opportunity for a further review of their application and is provided an opportunity to submit additional information in support of the application.  606 CMR 14.11(7).  An applicant must present “clear and convincing evidence demonstrating the candidate’s suitability for licensure, employment or affiliation in light of the concern for children’s safety.” 606 CMR 14.12(e). Ms. Rodriguez’s appeal proceeds in the context of these laws and regulations.

FINDINGS OF FACT

Based on the evidence presented by the parties, along with reasonable inferences drawn therefrom, I make the following findings of fact:

1. The Petitioner has used several names during her lifetime.  She is originally from the outside of the United States and the documentation that she has from her childhood regarding her legal name is unreliable.  (Testimony, Rodriguez.)
2. Several documents in the record in this case refer to Ms. Rodriguez by her prior names.  (Exhibits R2-R8.)
3. Her name is Agrimilda Rodriguez Santana, which is the name she used on her EEC application.  (Testimony, Rodriguez; Exhibit R1.)
4. In or around 2011, Ms. Rodriguez met the man who would become her second husband, who will be referred to in this decision as Mr. A.[3]  (Testimony, Rodriguez.)
5. Ms. Rodriguez has six children, ranging in age from 18 to 2 years old at the time of the hearing.  Mr. A is the father of her youngest three children.  (Testimony, Rodriguez.)
6. Ms. Rodriguez was the victim of domestic violence on repeated occasions during the course of her relationship with Mr. A. The parties separated and reconciled several times during their relationship. (Exhibits R9 and R10; Testimony, Rodriguez; Testimony, Santos; Testimony, Kefei.)
7. On October 20, 2015, there was an incident at Ms. Rodriguez’s home, where Mr. A also lived at the time.  The police reports describe the incident as follows[4]:  Members of her extended family went to Ms. Rodriguez’s home to check on her because she had not responded to them when they tried to reach her about the death of another family member. Mr. A was not home at the time. Ms. Rodriguez met her family at the door and was nervous that Mr. A might return home while they were there.  He did, and he became angry when he saw Ms. Rodriguez’s family members at the house with her.  He went into the home, punching Ms. Rodriguez in the face when he passed through the door.  He then returned to the porch and brandished a gun at Ms. Rodriguez’s family members.   (Exhibits R3-R5.)
8. Ms. Rodriguez’s family members were alarmed and called the police.  The police reported that when they responded, they searched the home and found both an unsecured firearm and drugs.  Both Ms. Rodriguez and Mr. A were arrested.  (Exhibit R3-R5.)
9. Ms. Rodriguez did not want to cooperate with the police at the time because she was afraid of Mr. A.  He had previously threatened to take the children away. (Testimony, Rodriguez.)
10. Ms. Rodriguez was not aware until the police searched the home that there was an accessible firearm inside.  As far as she was aware, Mr. A’s gun was in a safe.  (Testimony, Rodriguez.)
11. Because there were four young children in the home at the time of the October 2015 incident, the police contacted DCF to investigate conditions there.  Ultimately, based on that single incident, DCF substantiated the finding of four counts of neglect against Ms. Rodriguez (one for each child) and the children were removed from the home.  The DCF investigation found that, “[t]he children were exposed to large amounts of marijuana, narcotics and an unsecured firearm in the home.”  (Exhibit R8).
12. Ms. Rodriguez lost custody of her children for approximately a year and a half following the incident.  (Testimony, Rodriguez.)
13. As a result of the incident, Ms. Rodriguez was also indicted and arraigned on six charges:
    1. two counts of possession of a firearm without a license in violation of G.L. c. 269, §10(h);
    2. one count of possession of ammunition without a license, in violation of G.L. c. 269§10(h)(1);      
    3. one count of reckless endangerment of a child, in violation of G.L. c. 265, § 13L;
    4. one count of possession of a Class D drug with intent to distribute in violation of G.L c. 94C, §32C(a); and        

    5. one count of distribution of a Class D drug in violation of G.L c. 94C, §32B(a)

       (Exhibit R7.)

14. The Commonwealth declined to pursue the criminal charges that had initially been brought against Ms. Rodriguez, and the charges were “nolle prossed” [5] on February 6, 2017.  Ms. Rodriguez has no criminal convictions in Massachusetts. (Exhibit R7.)
15. After her children were removed from her custody, Ms. Rodriguez became employed and went to therapy and parenting classes. She complied with all of the requirements that DCF imposed to regain custody of her children and has remained employed.  Her children were returned to her approximately 18 months after the October 2015 incident and DCF has not been involved with Ms. Rodriguez’s family since the children returned.  (Testimony, Rodriguez.)
16. Mr. A served more than 3 years in prison following the incident in October 2015.  During his incarceration, he seemed to change – attending church and domestic violence prevention classes and taking medication.  As a result, Ms. Rodriguez and Mr. A resumed their relationship after his release.  (Testimony, Rodriguez.)
17. Eventually, Mr. A resumed using drugs and his abusive behavior toward Ms. Rodriguez.  She separated from him again and he left their home permanently in 2022.  She understood that she needed to be a good role model for her children. (Testimony, Rodriguez.)
18. Mr. A does not live with Ms. Rodriguez.  They are now divorced.  The divorce became final in February 2023.  Ms. Rodriguez retained the title to their home in the divorce.  Ms. Rodriguez currently seeks to operate a licensed family childcare center in this home. (Testimony, Rodriguez; Exhibit P5.)
19. Ms. Rodriguez remains in contact with Mr. A because they co-parent their children.  He lives at another location with members of his family.  Mr. A does not go inside Ms. Rodriguez’s home.  His family members assist with picking up or dropping off the children for visitation sometimes, or they will meet in a neutral location (such as the parking lot of a retail business) to exchange custody.  (Testimony, Rodriguez.)
20. In or around October 2024, Ms. Rodriguez applied to the EEC for a family childcare license, seeking to provide childcare services out of her own home.  (Exhibit P1.)
21. As a result of Ms. Rodriguez’s background check, the EEC learned about Ms. Rodriguez’s criminal record and the 51B report the DCF had issued supporting allegations of neglect by Ms. Rodriguez in October 2015 mentioned above.[6]  (Exhibit P1.)
22. The EEC informed Ms. Rodriguez that, as a result of her criminal history and the 51B report, she had a potentially disqualifying background.  It invited her to provide additional information as part of the EEC’s review process.  (Testimony, Morales; Exhibit R1).
23. In response, Ms. Rodriguez provided a candidate statement, confirmation of therapy attendance and additional references. (Exhibit R1.)
24. Maria Morales was the EEC Background Check Unit specialist who conducted Ms. Rodriguez’s review.  As of the date of the hearing, Ms. Morales had worked at the EEC for approximately five years.  She is currently a Background Record Check Specialist II, and at that time, she had been in that role for approximately one year.  (Testimony, Morales.)   
25. In conducting her review, Ms. Morales considered the 51B report and the materials submitted by Ms. Rodriguez.  (Testimony, Morales.)
26. In her review of Ms. Rodriguez’s application, Ms. Morales considered the factors set forth in 606 CMR 14.12(f).  The findings below relating to Ms. Morales’s consideration of these factors are based on her testimony, as well as from her written report.  (Testimony, Morales; Exhibit R1).
27. The first factor (“Time since the incident(s)”) was one that Ms. Morales determined to be favorable to Ms. Rodriguez because the incident occurred 9 years before she applied to the EEC.  (Testimony, Morales.)
28. Ms. Morales concluded that the second factor (“Age of the candidate at the time of the incident(s)”) weighed against Ms. Rodriguez because she was 29 years old (i.e. an adult) at the time of the incident. (Testimony, Morales.)   
29. Ms. Morales weighed the third factor (“Seriousness and specific circumstances surrounding the incident(s)”) heavily against Ms. Rodriguez.  This is because the conduct described in the criminal charges and the 51B report involved the presence of a firearm and drugs in Ms. Rodriguez’s home.  (Testimony, Morales.)
30. The same analysis applied to the fourth factor that Ms. Morales considered (“Relationship of the incident(s) to the ability of the candidate to care for children”), which also weighed against Ms. Rodriguez because children in her care were at risk and potentially subject to violence with those items in the home. (Testimony, Morales.)
31. In her assessment of the fifth factor (“Number of criminal offenses or findings of abuse/neglect”), Ms. Morales noted that there were several criminal charges that were initially brought, which were eventually added to as the case proceeded through the courts, including the reckless endangerment charge and the trafficking charge. This factor weighed against Ms. Rodriguez.  (Testimony, Morales.)
32. As for the sixth factor (“Dispositions of criminal offenses or findings of abuse/neglect”), Ms. Morales found that the supported 51B report weighed against Ms. Rodriguez because children in her care were at risk and potentially subject to violence with those items in the home.  (Testimony, Morales.)  
33. Ms. Morales weighed the seventh factor (“Relevant evidence of rehabilitation or lack thereof”) favorably to Ms. Rodriguez, stating that she had done a “wonderful job” with therapy and rehabilitative efforts in 2015 and 2016 – she did note that there was no evidence that Ms. Rodriguez was currently in therapy at the time she submitted her application to EEC.  (Testimony, Morales.)
34. The eighth factor (“Other relevant information, including information submitted by the candidate”) involved Ms. Morales’s consideration of Ms. Rodriguez’s personal statement and the references she provided.  The multiple positive references provided were favorable to Ms. Rodriguez.  Ms. Morales determined that the personal statement was neutral.  First, Ms. Rodriguez disclosed that she was a survivor of domestic violence and her statement outlined the considerable progress she had made since the incident, which was positive.  However, it also made clear that Ms. Rodriguez had reconciled with Mr. A after the 2015 incident and that she had done so on more than one occasion.  Ms. Morales considered the fact that Ms. Rodriguez had renewed her relationship with Mr. A to weigh against her suitability. (Testimony, Morales.)
35. Weighing the eight factors, Ms. Morales determined that Ms. Rodriguez was “not suitable.”  This determination was reviewed and approved by Ms. Morales’s supervisors.  (Testimony, Morales; Exhibit R1.)
36. The EEC informed Ms. Rodriguez that it had denied “discretionary approval of the Background Record Check” and that she could file a Notice of Claim requesting an adjudicatory hearing. Ms. Rodriguez filed a Notice of Claim and requested an adjudicatory hearing.  (Exhibit R11.)   
     

Conclusion

Taken together, the evidence in the record shows that Ms. Rodriguez presented clear and convincing evidence of suitability for licensure.  For the foregoing reasons, I recommend that the EEC’s final agency decision reverse its initial determination that Ms. Rodriguez is not a suitable family childcare candidate.

SO ORDERED.

Division of Administrative Law Appeals

Melinda E. Troy_

Melinda E. Troy, Esq.
Administrative Magistrate

Dated: July 24, 2025

Petitioner’s Exhibit List

1. Salem (NH) District Court Case Summary, Case No. 473-2013004054.
2. Partial Copy of the EEC BRC rationale for Ms. Rodriguez.
3. Essex County Superior Court Docket Report, Docket No. 1577CR00721.
4. Applicant’s Statement to DALA, dated January 29, 2025.
5. Certificate of Divorce Absolute for Ms. Rodriguez.
6. Application for Legal Permanent Residence, dated September 20, 2024.
7. Summary of expected testimony of witness Samson Kefei, Esq.
8. Undated letter by Neysha Rivera and Alberquis Abreu in support of the Respondent.
9. Undated letter from Nicole Cure in support of the Respondent.
10. Letter dated January 24, 2025 from Paul Esielionis, M.D. in support of the Respondent.
11. Letter dated January 26, 2025 from Mandy Chaput in support of the Respondent.
12. Letter dated August 12, 2024 from Alicia Santos in support of the Respondent.
13. Letter dated August 10, 2024 from Hiliana Santos, J.D. in support of the Respondent.
14. Report cards for Ms. Rodriguez’s 2 eldest children.
15. Report cards for Ms. Rodriguez’s 2 middle children.
16. Report cards for Ms. Rodriguez’s 2 youngest children.
17. Business Portfolio Brief Insight for Le Femilia Childcare.

Respondent’s Exhibit List

1. EEC BRC Rationale for the Petitioner.
2. Salem (NH) District Court Case Summary, Case No. 473-2013004054.
3. Lawrence Police Department Incident Report dated October 20, 2015 completed by Det. Nighosian.
4. Lawrence Police Department Incident Report dated October 20, 2015 completed by Det. Colantuoni.
5. Lawrence Police Department Incident Report dated October 20, 2015 completed by Ptl. Blanco.
6. Docket Sheet for Criminal Docket No. 1518CR005827 involving the Petitioner.
7. Docket Sheet for Criminal Docket No. 1557CR00721 involving the Petitioner.
8. Department of Social Services Emergency Neglect Investigation for incident reported October 21, 2015.
9. Application for Complaint and Police Report dated March 8, 2013, involving Mr. A.
10. Haverhill District Court Criminal Docket No. 1338CR000574, involving Mr. A.
11. Notice of Claim for the Petitioner, sent under cover letter dated October 7, 2024.

[1]A “final suitability determination” is “a conclusion that a candidate is ‘suitable’ or ‘not suitable’ after completing all mandatory components of the EEC’s Background Record Check process.”  606 CMR 14.04. A “child care candidate” “includes all candidates who operate…a program…”  Id.

[2]   At the time of Ms. Rodriguez’s involvement with this agency, it was known as the Department of Social Services, and documents in the record refer to it in that manner.

[3]                Some of Ms. Rodriguez’s children share a last name with her former spouse. In the interest of maintaining the confidentiality of their identities, this decision will refer to Ms. Rodriguez’s former spouse without using his legal name.

[4] This is a summary of the police reports.  I am not making a finding that the incident occurred as described in the reports.

[5] “Nolle prosequi” is a Latin term meaning “not to wish to prosecute”.  It is used to denote the disposition of a criminal case when a prosecutor declines to pursue charges brought against an individual.

[6] A 51B report is a “report prepared pursuant to M.G.L. c. 119, § 51B detailing the MA DCF investigation into allegations of abuse or neglect upon a child and a determination by DCF whether there is reasonable cause to believe a child identified in the report has been, or is at risk of being, abused or neglected.  A 51B report will either support or unsupport the allegations of abuse or neglect.” 606 CMR 14.04.