The Petitioner’s background check of the Respondent and her household members revealed that she had a DCF history which included three supported findings of neglect. Inasmuch as she does not dispute any material fact, EEC has acted within its discretionary authority in determining that she is not suitable for licensure as a day care provider. As there is no issue of material fact, the Petitioner’s Motion for Summary Decision must be allowed.
On September 12, 2016, the Petitioner, Department of Early Education and Care (“EEC”), pursuant to 102 CMR 1.07(4)(b) and 606 CMR 14.00, issued a decision denying the request of the Respondent, Carmen Correa, for discretionary approval as a licensed family day care provider. (Exhibit 1.) The Petitioner issued its decision pursuant to the background check regulations promulgated under 606 CMR 14.14. The Respondent filed a timely appeal on October 4, 2016. The Petitioner filed the Notice of Claim with the Division of Administrative Law Appeals on November 28, 2016.
A pre-hearing tele-conference was held on January 4, 2017. During the tele- conference, the Respondent acknowledged that the facts set forth in the Petitioner’s Background Discretionary Review Decision are accurate.
The Petitioner filed a Motion for Summary Decision on February 21, 2017. (Attachment A.)
Based upon the Petitioner’s Discretionary Approval Review document and the Respondent’s acknowledgment of the facts set forth therein, I hereby render the following agreed Findings of Fact:
- The Respondent, Carmen Correa, applied for a position as a licensed family child care provider and consequently requested a background check on herself and her household members through the EEC, as required under the law. 606 CMR 14.09.
- The Respondent’s background check included a Department of Children and Families (DCF) history. On July 9, 1999, April 6, 2001 and October 31, 2008, DCF concluded that allegations of neglect were supported. (Exhibit 1 and Attachments C-E.)
- The 1999 Neglect involved the alleged sexual abuse of her five-year old son by a playmate. DCF supported the neglect finding based on lack of supervision by the Respondent. (Exhibit 1 and Attachment C.)
- The 2001 Neglect involved the inconsistent attendance at school of the same child, then six years old. DCF found reasonable cause to support educational neglect due to the 28 school days missed by the child who had already been held back a year once before. (Exhibit 1 and Attachment D.)
- The 2008 Neglect involved the Respondent admitted to DCF that she sometimes disciplined her fourteen and eleven year old children by slapping them in the face with an open hand. (Exhibit 1 and Attachment E.)
- The EEC Background Check Review team concluded that there was reason to believe that the Respondent was not suitable as a day care provider given the potential risk of harm to children. Ergo, EEC determined that the Respondent was ineligible to receive a family child care license and her request for discretionary approval was denied. She was so notified in a letter dated September 15, 2016. (Exhibit A.)
- The Respondent filed a timely appeal on October 4, 201 (Exhibit 1.)
Summary Decision in administrative proceedings is the functional equivalent of summary judgment in civil proceedings. See Jack King and National Refrigeration, Inc. v. Office of the Attorney General, Fair Labor Division, LB-12-367 and LB-12-407 (Division of Administrative Law Appeals, January 29, 2014) citing Caitlin v. Board of Registration of Architects, 414 Mass. 1, 7 (1992) (citing Mass. R. Civ. P. 56 for summary decision in administrative cases), Calnan v. Cambridge Retirement Board, CR-08-589 (Division of Administrative Law Appeals 2012) and Steriti v. Revere Retirement Board, CR-07-683 (Division of Administrative Law Appeals 2009). Summary decision is appropriate when there are no genuine issues of material fact and the case may be decided as a matter of law. King, supra, citing Caitlin, supra at p. 7, 801 CMR 1.01(7)(h) and Mass. R. Civ. P. 56. A fact is “material” only if it might affect the outcome of the case. King, supra, citing Lockridge v. The Univ. of Maine System, 597 F 3d 464, 469 n. 3 (1rst Cir. 2010) citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242 248 (1986). An issue of material fact is “genuine” only if a fact-finder could reasonably resolve the dispute in favor of either party. Id. (citing Santoni v. Potter, 369 f.3d 594, 598 (1rst Cir. 2004).
The moving party must demonstrate the absence of any genuine issues of material fact. 801 CMR 1.01(7)(h), see also Mass. R. Civ. P. 56, Flesner v. Technical Communications Corp., 410 Mass. 805, 808 (1991). King, supra, citing Beatty v. NP Corp, 31 Mass. App. Ct. 606, 607 (1991) (evidence “may be in the form of affidavits, depositions, interrogatories, admission and sworn pleadings”). Inferences from these materials must be drawn in the light most favorable to the opposing party. Beatty, supra at p. 607. However, a magistrate does not make credibility determinations at the summary decision stage. Id. Therefore, if the moving party’s evidence establishes a material fact, the opposing party must in turn “set forth specific facts showing that there is a genuine issue for trial.” Mass. R, Civ. P. 56(e) (“mere allegations or denials” are not sufficient). Absent such “countervailing materials” from the opposing party, summary decision may properly be granted on the basis of the moving party’s undisputed evidence. King, supra, citing Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 715 (1991).
Pursuant to 606 CMR 14.14(3)(a)-(g), the EEC reviewer(s) must look at the time since the act(s) of abuse or neglect, and the age of the candidate at the time of those act(s) of abuse or neglect, as well as the seriousness and specific circumstances of the abuse or neglect, and the relationship of the specific nature of the abuse or neglect to the nature of the work to be performed. The reviewer(s) also look at the number of abusive or neglectful acts and any relevant information, including that submitted by the candidate.
The Background Record Check Discretionary Review Decision concluded that, after applying the factors contained in 606 CMR 14.14, the Respondent was “not suitable” for licensing as a family day care provider given the potential risk of harm to children by virtue of her propensity to fail to take responsibility for her actions and her admission that she employs corporal punishment. The Petitioner’s authority is clearly delineated by law. The Petitioner has been statutorily required to conduct background record checks on applicants who seek employment with EEC licensed, approved, or federally funded programs. See G.L. c. 15D, §§3, 7 and 8. In accordance with its statutory authority, the Petitioner has promulgated its background check regulations under 606 CMR 14.00 requiring the CORI, DCF and Sex Offender Registry Information (SORI) checks that were performed in this case along with a fingerprint-based check of the state and national criminal history database on all applicants. See 606 CMR 14.09. The statutory authority delegates the Petitioner with the authority to determine who is suitable for employment or licensure in EEC licensed programs. See 606 CMR 14.02. The hiring authority has the discretion to decide whether the applicant provided clear and convincing evidence that he/she is appropriate for employment in light of the concern for the safety of children. See 606 CMR 14.14(2) AND (4). As such, the Petitioner has a strong legal basis for exercising the authority delegated by law.
The Division of Administrative Law Appeals is not to re-evaluate the Petitioner’s discretionary decision, but rather to evaluate whether or not the Petitioner’s decision was based upon sufficient facts, not arbitrary or capricious, or otherwise unsupported by law. In this case the Respondent does not dispute the existence of her record and DCF findings or whether EEC provided her with the opportunity to respond to her record. The Petitioner’s Background Check Discretionary Review Decision is a thoughtful and lengthy analysis of the Respondent’s DCF history, taking into account documents she provided and describing the facts and law used when rendering its decision.
Accordingly, the Petitioner’s Motion for Summary is ALLOWED.
Division of Administrative Law Appeals,
DATED: April 18, 2017