Decision

Decision Dept. of Early Education and Care v. Carvajal-Rojas, Marisol (OC-17-754)

Date: 06/29/2018
Organization: Division of Administrative Law Appeals
Docket Number: OC-17-754
  • Petitioner: Department of Early Education and Care
  • Respondent: Marisol Carvajal-Rojas
  • Appearance for Petitioner: Denise J. Karlin, Esq.
  • Appearance for Respondent: Marisol Carvajal-Rojas
  • Administrative Magistrate: Bonney Cashin

Table of Contents

The EEC’s decision to deny Marisol Carvajal-Rojas’s request for discretionary approval for a renewal of a family child care license pursuant to 606 CMR 14.14(3) is supported by a preponderance of the evidence.  A Department of Children and Families background check revealed two supported findings of domestic violence against an adult member of her household.

On August 4, 2017, the Department of Early Education and Care (“EEC”) refused to renew Marisol Carvajal-Rojas’s family child care license after it denied an Application for Discretionary Approval concerning Edwin Ruiz. Ms. Carvajal-Rojas filed a timely claim for an adjudicatory hearing.

I held a hearing on November 16, 2017 at the office of the Division of Administrative Law Appeals, located at One Congress Street in Boston, Massachusetts. An interpreter was available telephonically for Ms. Carvajal-Rojas. The parties stipulated to the admissibility of six documents. (Exs. A-F). I admitted EEC’s August 4, 2017 decision as Ex. G. I digitally recorded the hearing. Ms. Carvajal-Rojas testified on her own behalf. The EEC called Robin Lalancette, EEC Background Record Check Specialist.

FINDINGS OF FACT

Based on the testimony provided and other evidence in the record, I find the following:

1.         In 2013, Marisol Carvajal-Rojas was granted a family child care educator license for her home. In 2017, she applied to renew her license. A background record check is part of the application and renewal process. (Exs. A, C).

2.         Edwin Ruiz lives with Ms. Carvajal-Rojas, and they have two children together. As a member of her household, he was subject to a background check.1 (Exs. A, C).

3.         Edwin Ruiz is the subject of a 2007 51B report for neglect. 2 An assault and battery charge is on his Criminal Offender Record Information (“CORI”) from the same year.3 The victim was his ex-wife. (Exs. A, B, C, D).

4.         Both the 2007 51B report for neglect and the assault and battery charge stem from a domestic violence incident. Mr. Ruiz physically assaulted his then wife by striking her repeatedly with a closed fist. Both of Mr. Ruiz’s children were present in the home during the time of the assault. (Exs. A, C, D).

5.         When Ms. Carvajal-Rojas applied for her license in 2013, EEC granted discretionary approval to Mr. Ruiz for his disqualifying background for two reasons. First, he had only one 51B report for neglect. Second, Ms. Carvajal-Rojas was not the victim of his domestic abuse. (Exs. A, C).

6.         During an October 10, 2014 medical appointment, Ms. Carvajal-Rojas admitted that, three months earlier, Mr. Ruiz had struck her in front of their two children. (Exs. A, D).

7.         On November 3, 2014, the Department of Children and Families (“DCF”) informed Mr. Ruiz that it would issue a supported finding of neglect of his children due to his domestic violence incident with Ms. Carvajal-Rojas. On March 31, 2015, DCF closed its case concerning Mr. Ruiz. (Exs. D, F).

8.         By letter dated November 14, 2016, the EEC Background Record Check Unit notified Ms. Carvajal-Rojas that she may be disqualified from holding a family child care educator license based on Mr. Ruiz’s DCF Background History, which now included two allegations of neglect, each supported in a 51B report. (Ex. B).

9.         When EEC’s discretionary review team, including Ms. Lalancette, met to review Ms. Carvajal-Rojas’s application, it considered the following: there was a pattern of domestic violence perpetrated by Mr. Ruiz in front of his children; the Discretionary Approval granted in 2013 involved a woman other than Ms. Carvajal-Rojas; there were two findings of neglect under extremely similar circumstances; the matter was extremely serious, as young children witnessed  Mr. Ruiz’s violence against their mothers; Mr. Ruiz’s conduct is directly related to the ability of Ms. Carvajal-Rojas to provide safe child care; there is no guarantee that Mr. Ruiz will be outside of the home during child care hours; Mr. Ruiz was only 24 years old at the time of his first DCF neglect support, but he was 31 years old at the time of the second neglect support; and Mr. Ruiz has shown no evidence of rehabilitation, such as completing anger management classes. (Exs. A, C; Testimony Lalancette).

10.       On July 26, 2017, EEC denied Mr. Ruiz’s request for discretionary approval. (Exs. A, C).

11.       Ms. Carvajal-Rojas believed that, aside from the two incidents documented in the 51B reports, Mr. Ruiz is a good father, who behaves well in front of his children. She believed she could provide a safe environment for children. (Testimony Carvajal-Rojas).

13.       Mr. Ruiz would be at work during child care hours, and he would be able to stay at his mother’s apartment, which is in the same building as his, if he needed to stay home from work. (Testimony Carvajal-Rojas).

14.       EEC issued its refusal to renew Ms. Carvajal-Rojas’ family child care educator’s license, based on Mr. Ruiz’s disqualifying background, on August 4, 2017. (Ex. G).

15.       Ms. Carvajal-Rojas timely appealed on August 11, 2017. (Ex. E).           

Downloads for OC-17-754 Dept. of Early Education and Care v. Carvajal-Rojas, Marisol (OC-17-754)

1 The record is not clear about whether Mr. Ruiz and Ms. Carvajal-Rojas were married.

2 A G.L. c. 119, §51B report details the investigation by DCF after a claim of child abuse or neglect has been reported and includes the investigator’s conclusion whether the allegations are supported or unsupported.

3 EEC did not consider the CORI record again when Ms. Carvajal-Rojas sought to renew her license.

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