| Date: | 02/27/2008 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | OC-07-612 |
Pursuant to the provisions of G. L. c. 28A ss., 9, 11 and 15 and 102 CMR 1.03(2),
on July 19, 2007, the Petitioner, Department of Early Education and Care (EEC),
issued a Notice of Action: Refusal to Issue a Group Child Care License to the
Respondent, Denise Zrakas, whom it alleged had been providing unlicensed child care at 723 Chapin Street, Ludlow, under her expired Large Family Child Care License No. 2069340 to provide care at 53 Blanchard Avenue, Ludlow, MA. (Exhibit 22). The Respondent filed a timely appeal.
Pursuant to G. L.c. 7 s. 4H, G. L. c. 30A and 801 CMR 1.01 et. seq., a hearing
was held on November 28, 2007 and continued to November 30, 2007 when it was heard to completion at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA. At the hearing, thirty-three (33) exhibits were marked. The Petitioner presented the testimony of the following witnesses: Erin Murphy Craft, Acting Associate Commissioner of Field Operations in EEC's Western MA Regional Office and EEC Western Regional Director; Linda Lenehan, EEC Program Supervisor; Oliria Pasciga, EEC Group Licensing Specialist; and, Karen Burns, EEC School Age Licensing Specialist. The Respondent presented the testimony of: Claudette Giraud, the parent of children who attended the Respondent's Large Family Child Care Program; and, Benjamin Cook, former EEC Legal Counsel. The Respondent testified in her own behalf. Seven (7) audiotapes were made of the proceedings: four (4) on November 28 and three (3) on November 30. The record was left open for the filing by the parties of post-hearing memoranda of law. The last of these was received on January 7, 2008, thereby closing the record.
EEC alleged that the Respondent provided unlicensed child care at unlicensed
premises during late June and July 2007. The bases of the EEC Refusal to Issue and the purported regulatory violations, along with the corresponding Findings of Fact (FF) are:
102 CMR 1.03(2) -The Applicant provided child care without a
license. [FF 20, 22, 24 and 25]
102 CMR 7.25 (1) - The Applicant provided child care in a
building that had not been approved by the
local building inspector. [FF 21-24]
102 CMR 1.06(02) -The Applicant prevented EEC staff from
102 CMR 1.07(04)(a)(05) investigating her child care program. [FF
23-25]
102 CMR 7.06 -The Applicant failed to operate the child
care center soundly. [FF 20-24]
102 CMR 1.07 (4)(a)(1) -The Applicant failed to comply with child
care regulations and violated a sanctions
order imposed on her license. [FF 15 and
20-25]
102 CMR 1.05(1) - The Applicant's violent and excessive
102 CMR 1.05(1)(a)(2) temperament constitutes a disqualifying
background. [FF 9, 12, 13, 24 and 25]
Based upon the testimony and documents submitted at the hearing in the above-
entitled matter, I hereby render the following findings of fact with the corresponding EEC regulation:
1. The Respondent, Denise Zrakas, was first licensed as a family child care
provider in June 1995. Her license was renewed in June 1998, June 2001 and again in June 2004. Some of the family child care license renewals would be approved by the Office for Children, and later EEC, prior to the Respondent's receipt of the actual paper license. Her most recent large family child care license allowed her to care for up to ten (10) children in her home. (Testimony and Exhibits 15, 16 and 23).
2. The Respondent was very familiar with the EEC licensing process. When she
received her renewed family child care licenses, she posted them conspicuously in her family child care facility. (Testimony).
3. In late May 2006, a complaint investigation was conducted of the
Respondent's family child care program. The Respondent's husband was her EEC
certified assistant. His work schedule was midnight to 7:00 AM. This raised concerns that he was unable to assist her in the family day care program from 7:30 AM to 5:30 PM. A Statement of Non-compliance issued. The Respondent's first compliance plan was found to be insufficient. (Exhibit 33).
4. The Respondent applied for a group child care license in September 2006.
She informed EEC staff that she had purchased the building at 723 Chapin Street in Ludlow at that time. In addition to the $270,000 purchase price for the real estate, she expended approximately $150,000 for renovations, furnishings and alarms. (Testimony).
5. On September 1, 2006, the Respondent signed a Written Plan for Compliance
with EEC regulations that pertained to a future, "provisional license" to operate group child care. The Respondent had a few telephone conversations with EEC Program Supervisor Linda Lenehan pertaining to the steps necessary in procuring a group child care license. A site visit scheduled for mid-October 2006 was postponed until zoning issues could be resolved. (Testimony and Exhibit 17).
6. In October 2006, the Department of Social Services had supported a
51B report that a child had been physically abused while in the Respondent's care. EEC commenced an investigation. (Testimony).
7. After an unannounced visit to the Respondent's home on November 1, 2006,
EEC's investigator concluded that there was reasonable cause to support the physical abuse allegation against the Respondent. (Exhibit 3).
8. The EEC investigator also discovered other regulatory violations during the
November 1, 2006 investigation. The Respondent was with six (6) children on the first floor and informed the investigator that there were three infants on the second floor underthe supervision of her husband. The EEC investigator went upstairs and observed the Respondent's husband lying in bed, covered with a blanket, with his eyes closed. The investigator waved; the husband did not respond. The investigator notified the Respondent of the situation and she went upstairs and woke her husband. The Respondent insisted that her husband had been watching television and not sleeping. The EEC investigator observed three closed bedroom doors on the second floor. She opened one door and observed an infant sleeping in a crib. There was no baby monitor in the room. She opened another door and found an infant awake in a crib.
There was no monitor in the room. The Respondent stated that she had just taken the third infant downstairs and that the baby had been sleeping on a blanket on the floor of the third room. The Respondent indicated that she had not been aware that infants must sleep in either a crib or a playpen.
At that time, the Respondent's husband was still working outside of the home
from midnight to 7:00 AM and then acting as his wife's approved assistant in the family day care from 7:00 AM until 5:30 PM. He denied that he had been sleeping, but admitted that he may have "dozed off" while watching television. He remembered the name of only one of the three infants in the family child care program. He thought that there had only been two, and not three, infants under his care that morning. (Exhibit 3).
9. On December 13, 2006, an EEC family day care supervisor had a telephone
conversation with the Respondent. The Respondent became angry, refused to go to the EEC Springfield office to meet with staff, and terminated the call prematurely by hanging up on the supervisor. (Id.).
10. After the DSS abuse complaint surfaced, Ms. Lenehan informed the
Respondent that the application process for the group child care license must be slowed up until the complaint was resolved. A site visit at 723 Chapin Street that was scheduled for November 28, 2006 was postponed. The Respondent was still allowed to send documents to EEC during this period, but no action was taken on the license application until February 14, 2007. (Id.).
11. In a letter dated February 14, 2007, Linda Lenehan informed the Respondent
that she had reviewed the information that the latter had submitted to fulfill requirements of the licensing process for the group child care program. Ms. Lenehan listed several documents, policies and inspections that were still outstanding. These included a building inspection. In addition, Ms. Lenehan indicated that a site inspection must be scheduled. (Exhibit 1).
12. On or about March 8, 2007, the Respondent and Linda Lenehan had a
telephone conversation wherein they discussed the differences between family child care and group child care. They discussed zoning concerns and documents that were still missing from the Respondent's application file. Ms. Lenehan informed the Respondent of the need that she hire a full time group child care program director. She began to explain some of the benefits of a program director to the Respondent. The Respondent was not pleased about this requirement and she made her feelings known to Ms. Lenehan. She started yelling and screaming at Ms. Lenehan, then she cried and hung up the phone. (Testimony).
13. On March 27, 2007, a meeting was held at the EEC Western Regional Offices
to discuss the group child care application process. The Respondent and her attorney attended the meeting. Ms. Craft and Ms. Lenehan represented EEC. The meeting started out in a professional tone. At some point, the Respondent, who was emotionally distraught over the outstanding supported 51B issue, became agitated and upset. She threw a document across the table toward ECC staff. She cried, yelled, and got up and slammed the door. Ms. Craft terminated the meeting. (Testimony).
14. The Respondent's attorney continued to communicate with EEC licensing
staff and legal counsel in May 2007. Notwithstanding the fact that the child abuse
complaint had not yet been resolved, EEC agreed to issue a group child care license to the Respondent if she fulfilled all of the criteria. The parties worked toward trying to put the finishing touches on the group child care license. The final decision on when the license would issue was not made at that time. The Respondent's counsel was informed that when the license issued, it would be subject to sanctions imposed by EEC. (Id.).
15. On June 11, 2007, EEC issued an Order to Protect Children: Notice of
Sanctions to the Respondent. The letter informed the Respondent that EEC was
"imposing sanctions upon your [her] license to provide group child care (Facility No. 2912025). The Respondent was also advised that the action was being taken because she had been cited for violating child care health and safety regulations, including the neglect of infants and toddlers. The Respondent was informed that she needed to post the order at a place in her center that was easily visible to parents.
The Notice set forth the following violations by the Respondent pertaining to the
October 2006 DSS allegation and the November 1, 2006 EEC inspection:
1. The Respondent was physically abusive and neglectful of children
in her care.
2. The Respondent failed to provide adequate supervision of children in
her care.
3. The Respondent violated child/staff ratios.
4. The Respondent failed to maintain a background that was free from
conduct that bears adversely on her ability to care for children.
Part C of the Notice, pertaining to Sanctions, read, in pertinent part:
The Provider's FCC (family child care) license will expire on June 11, 2007 and she is not seeking renewal. However, the Provider has applied for a GCC (group child care) license. While the violations detailed above pose potential grounds for revoking the Provider's FCC license, EEC will issue the Provider a Group Child Care license that is subject to the sanctions below…EEC is allowing the GCC license in part because the sanctions require the Provider to hire a full-time director of the new program who will accordingly exercise general oversight of the program and children in care. The sanctions will remain in place for at least twelve months from the date of this order...
1. The Provider must notify parents of this Order.
2. The Provider must hire a full-time director. "The director must work with EEC on licensing the new group child care program site…"
3. The Provider must complete an EEC-approved anger management course. "EEC reserves the right to revoke the Provider's license if she fails to complete the course successfully within two months of the date of this order."
4. The Provider and her staff must complete training in DSS procedures.
(Exhibit 3).
16. The Respondent found the posting of the Notice of Sanctions to be
"embarrassing and humiliating". (Testimony).
17. Attached to the Order to Protect Children: Notice of Sanctions was a blank
PARENT ACKNOWLEDGEMENT STATEMENT that the Respondent was instructed to disseminate to all group child care parents. The statement read:
My child is enrolled in Denise Zrakas's child car program. By signing
this statement, I acknowledge the following:
1) I have seen the Order to Protect Children: Notice of Sanctions ("Order") posted at Ms. Zrakas's child care program; and
2) I have had the opportunity to read the Order.
I understand that Ms. Zrakas presently is licensed by the Department of Early Education and Care to provide group child care and that she must comply with the requirements of the Order. (Id.).
18. The Respondent enrolled in an anger-management program in early
June 2007. (Exhibit 31).
19. The Respondent's FCC license expired on June 11, 2007. (Exhibit 18 and
Testimony). 20. On June 13, 2007, Nicole Yacovone of EEC e-mailed information to the Ludlow Community Partnerships office notifying the agency that EEC "would be issuing" the Respondent a Group Child Care License with sanctions attached so as to notify persons responsible for placement of children in day care. (Exhibit 21).
21. The Respondent began operating her GCC program at 723 Chapin Street on
June 18, 2007. She had her staff, including the new director, in place at that time. She began having parents submit the PARENT ACKNOWLEDGEMENT STATEMENTS to EEC. (Exhibit 19). [102 CMR 1.03(2); G. L.c. 28A s 15].
22. On June 22, 2007, the Town of Ludlow Department of Inspectional Services
issued a Cease and Desist Order to the Respondent for the premises at 723 Chapin Street. The order indicated that it had been brought to the attention of that department that she had been using the premises as a daycare center with no approved site plan from the Planning Board, final inspections and Certificate of Occupancy. The Respondent was informed that the building code must be adhered to and a Certificate of Occupancy must be obtained before operating in the building. (Exhibit 4). [102 CMR 7.25(1)].
23. The Respondent took the position that the Cease and Desist Order pertained
to a driveway on the premises. She continued to operate the group child care program at 723 Chapin Street. She did not tell EEC that she had received the Cease and Desist Order. She had seventeen (17) children enrolled in her program and staff that she needed to pay and she was not going to close down because of this order. (Testimony). [102 CMR 1.03(2); 102 CMR 7.25(1); G. L.c. 28A s. 15].
24. On June 29, 2007, Erin Craft e-mailed EEC attorney Benjamin Cook and
informed him that, after the June 11, 2007 Order to Protect Children had gone out, the group child care licensor had called the Respondent to schedule an appointment to finish up with the licensing study for the new program. The Respondent had left a voice message for the licensor stating that any correspondence with her needed to go through her attorney. The Respondent's attorney did not return phone calls. (Exhibit 18).
25. At some point in early July 2007, a site inspection was scheduled for late
July 2007. (Testimony).
26. On July 10, 2007, EEC received a complaint that the Respondent was
providing unlicensed group child care and was in violation of building codes at 723
Chapin Street. EEC staff conducted an unannounced visit to the Chapin Street address and observed that she was caring for children. They also observed orange stickers on the door and some of the trees that indicated there was no occupancy permit for the building. During the visit, the Respondent allowed the two EEC staff members to enter the building and, once they informed her that she was not licensed to provide child care, she began raising her voice and yelling at them to leave. EEC staff observed a door that was not hinged and was leaning against a wall. The Respondent yelled that if she was not licensed, the EEC staff could not critique her program. She put her hand on the back of the shoulder of one of the staff in order to move her toward the door. The EEC staff member, the Respondent's licensor, felt threatened by this gesture. The Respondent continued to order the licensors to leave the building. (Exhibits 9, 10 and 12). [102 CMR 1.03(2); 102 CMR 1.07(4)(5); 102 CMR 1.06(2)].
27. The EEC licensors went to the Ludlow Police Department at the direction of
their supervisor. Sgt. Frank Nowak returned to 723 Chapin Street with the licensors and he asked the Respondent to comply with the EEC directive that she contact all parents of the children in her care and have them come pick up their children forthwith. The Respondent yelled more, cried, and then complied by calling the day care parents. (Testimony and Exhibits 6 and 7).
28. On July 11, 2007, EEC issued a Cease and Desist Order and Notice to Fine to the Respondent. She was ordered to immediately stop providing unlicensed child care at 723 Chapin Street in Ludlow, and stop providing care under her expired Large Family Child Care License for 53 Blanchard Avenue, Ludlow. The Respondent was notified of her right to request administrative reconsideration. She did so. She was unsuccessful. (Exhibit 12).
29. On July 19, 2007, the Respondent was notified by DSS that the decision that
a child was abused or neglected in her care had been changed to reflect an unknown perpetrator. The letter stated further that there was no reason to believe that the incident during which the child was injured occurred while the Respondent was responsible for her care. (Exhibit 20).
30. On July 19, 2007, EEC issued a Notice of Action to Refuse to Issue a Group
Child Care License to the Respondent. The grounds for refusal to issue were
enumerated:
1. The Applicant provided child care without a license. [102 CMR 1.03(2); G. L.c. 28A s. 15].
2. The Applicant provided child care in a building that had not been approved by the local building inspector. [102 CMR 7.25(1)]
3. The Applicant prevented EEC staff from investigating her child care program. [102 CMR 1.07(4)(5); 102 CMR 1.06(2)]
4. The Applicant failed to operate the child care center soundly. [102 CMR 7.06]
5. The Applicant failed to comply with child care regulations and violated a sanctions order imposed on her license. [102 CMR 1.07(4)(a)(1)]
6. The Applicant's violent and excessive temperament constitutes a
disqualifying background. [102 CMR 1.05(1); 102 CMR 1.05(1)(a) (2)]
(Exhibit 22).
31. The Respondent requested an adjudicatory hearing.
After a careful review of all of the evidence along with the applicable statute and
regulations in this case, I have concluded that the EEC has met its burden of proving that the Refusal to Issue the group child care license to the Respondent has merit. This conclusion is supported not only by the Findings of Fact set forth herein, but also by the Respondent's indignant attitude toward her licensing authority, her feigned lack of knowledge of the licensing process, her overriding concern for her personal financial interests, over and above the interests of the children in her care, and her quest for and expectation of expediency in the licensing process.
The Respondent was not licensed to open and operate the group child care facility notwithstanding her contention that certain language in the Notice of Sanctions and in the Parent Acknowledgement Statements reflects that she was licensed. The documents she cites as support for her contention were part of the entire licensing process and were meant to be part of the file once the group child care license was issued. They did not, in and of themselves, substitute for a group child care license. The Respondent had worked with EEC for several years as a large family day care provider. She knew that a site inspection and an occupancy permit were prerequisites to the granting of a license. She knew that the site inspection would not be performed until late July 2007. She also knew, or certainly should have known, that, once the Town of Ludlow issued the Cease and Desist Order, she could not lawfully provide child care at 723 Chapin Street. However, instead of closing the facility until the site inspection and her receipt of a valid license, she chose to ignore EEC's attempts to contact her in late June 2007 and she ignored the Order of the Town of Ludlow. She had a large amount of money tied up in the project, between the purchase price and the renovations, and she had staff to pay. Thus, she took care of her own business considerations first, and she kept the facility open without a license.
It is also important to note here that the Respondent's choice of group child care
staff, especially the program director, also raises questions about her suitability to operate a group child care facility. None of the staff appears to have questioned the operation of the group child care program with a posted Cease and Desist order, without a building inspection, without an occupancy permit and without an EEC site inspection. The program director was not effective as an intermediary or buffer between the Respondent and EEC staff at the unannounced visit. Further, the program director was apparently unconcerned that work on the facility was not completed.
The overall picture that has developed is that of a woman who was challenged
to adhere to all of EEC's regulations during at least the final year of her relationship with the agency and became extremely angry with the agency for adhering to its own regulations when it received the information pertaining to the supported 51B with the resultant delay in the processing of the group child care license. Further, notwithstanding EEC's agreeing to grant her a group child care license before the final resolution of the child abuse complaint, EEC staff and regulations remained both a nuisance and an impediment to her plans as she tried to advance her business after having invested a great deal of money in 723 Chapin Street. She has displayed an inability and unwillingness to ever completely cooperate with EEC and abide by all of its regulations. She blames EEC for causing great harm in her life although she herself brought many of the difficulties on herself via her failure to respect the role and authority of EEC in the licensing process.
In conclusion, EEC's Refusal to Issue a group child care license to the
Respondent was not arbitrary or capricious. The Respondent knowingly and willingly violated the regulations previously cited herein. I recommend that the Refusal to Issue be upheld.
Division of Administrative Law Appeals,
Judithann Burke
Administrative Magistrate
DATED: February 27, 2008
