On December 28, 2007 the Department of Early Education and Care ("EEC") issued an Order to Protect Children: Notice of Revocation of the Family Child Care License #2078l69 issued to Ida Rosario allowing her to provide day care in her home that was then located at 537 School Street, Lowell, Massachusetts. Ms. Rosario filed a Notice of Claim for an adjudicatory hearing on January 2, 2008.
A pre-hearing conference was scheduled for February 29, 2008. That date was changed to March 4, 2008 at the request of the Respondent's then-counsel. At the pre-hearing conference on March 4, 2008 the parties agreed to a hearing date of April 14, 2008, and Respondent's counsel agreed to provide a final witness list and all documents to be submitted at hearing no later than April 4, 2008. On March 7, 2008, the Respondent, through counsel, filed an Answer. On March 7, 2007, the Respondent's counsel filed a Motion to Withdraw his appearance. The motion was allowed on March 17, 2008 by then-First Administrative Kimberly Fletcher.
On April 14, 2008, the EEC counsel arrived for hearing; the Respondent did not appear. The Respondent was sent an Order to Show Cause on April 14, 2008. The Respondent responded to the Order to Show Cause by fax on April 18, 2008 indicating that she had moved to New Hampshire and forgot to come to the hearing.
The hearing was re-scheduled for June 16, 2008.
On June 16, 2008, EEC filed a Motion to Dismiss under 801 CMR 1.01 (7) (g) 3 because the Respondent no longer lives in the Commonwealth so she no longer holds a valid EEC family child care license.
I held a hearing on the Motion to Dismiss, followed by a hearing on the merits, on June 16, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston.
I admitted documents into evidence. (Exs. 1 - 5) I marked "A" for identification a 51A report issued by the Department of Social Services on September 17, 2007, finding allegations of neglect and abuse of Ms. Rosario's grandchildren to be unsupported. There are two tapes of the hearing.
Testifying on behalf of EEC were Anne Connors, an EEC investigator, and Thomas Marino, EEC Associate Commissioner for Field Operations in the Northeast Region.
Ms. Rosario testified on her own behalf, as did her daughter, Amy Marcotte, and her father, Arthur Marcotte.
Motion to Dismiss
1. Ida Rosario was licensed to provide day care under Family Child Care License #2078169 at her home located at 537 School Street, Lowell, Massachusetts, which expires on November 8, 2009.
2. On December 28, 2007, the Department of Early Education and Care issued an Order to Protect Children: Notice of Revocation with respect to Ms. Rosario's license, alleging that Ms. Rosario failed to notify EEC that individuals with possible disqualifying backgrounds had either moved into her home or were regularly on the premises; that Ms. Rosario used poor judgment in placing videos on You Tube where children in her care were visible, resulting in a supported 51B report for neglect of children in her care; that Ms. Rosario acted inappropriately with both EEC and DSS staff; and that there were health and safety violations observed in Ms. Rosario's day care home.
3. Ms. Rosario filed a Notice of Claim for an adjudicatory hearing on or about January 2, 2008.
4. In or about April 2008, Ms. Rosario moved to Manchester, New Hampshire.
Conclusion and Recommendation
I recommend that this case be dismissed under 801 CMR 1.01 (7) (g) 3 because it is moot. The Respondent has moved out of the Commonwealth, so her license to provide family day care is no longer valid.
Under the provisions of 102 CMR 1.03 (7), a license is not transferable from one licensee to another, from one program or facility to another, or from one owner to another.
Under the provisions of 102 CMR 8.03 (2), the transfer of a license from one location to another may only be accomplished in accordance with 102 CMR 8.03 (7) which requires the provider to file with EEC an application for change of address or location within ten business days prior to the change of address. The Respondent would have had to comply with this regulation if she had changed locations within the Commonwealth of Massachusetts.
The Respondent, however, has moved to New Hampshire, out of the jurisdiction of the EEC. Her request for adjudicatory hearing is therefore moot because her license is no longer valid.
If the Petitioner moves back to the Commonwealth and wishes to operate a day care, EEC will review her background, including her Criminal Offender Record Information (CORI), and her Department of Social Services (DSS) abuse and neglect history, prior to determining whether to issue her a new license.
I recommend that the EEC's Motion to Dismiss be allowed.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Maria A. Imparato