The Petitioner’s background check of the Respondent and her household members revealed that a household member, her son, had a disqualifying background (CORI) check. Inasmuch as she does not dispute any material fact and she is unwilling to ensure that he is out of the home at all times during family day care hours, 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 December 6, 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, Cynthia Hoyt, for discretionary approval as a licensed family day care provider. (Exhibit A.) The Petitioner issued its decision pursuant to the background check regulations promulgated under 606 CMR 14.14. The Respondent filed a timely appeal on January 5, 2017. The Petitioner filed the Notice of Claim with the Division of Administrative Law Appeals on January 23, 2017.
A pre-hearing tele-conference was held on February 15, 2017. During the tele- conference, the Respondent acknowledged that the facts set forth in the Petitioner’s Background Discretionary Review Decision are accurate. She averred that the event in question had occurred back in 2012 and that her son was still living in the home.
The Petitioner filed a Motion for Summary Decision on March 24, 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, Cynthia Hoyt, applied for a renewal of the family day care license she had held since 2006. Her license had been renewed once before in 2012. At the time of the 2012 renewal, the Respondent’s son was 14 years old and too young to undergo the Background Record Check process that begins when an individual turns 15. See 606 CMR 14.00.
- The Respondent’s son was charged criminally and was found guilty in 2012 of a charge of assault and battery. When this occurred, the Petitioner’s Licensing Unit reviewed the matter from strictly a licensing perspective and not from a Background Record Check perspective and no action was taken on her license at that time. (Exhibit C.)
- The Massachusetts Criminal Record Information (CORI) check with the Department of Criminal Information Services (DCJIS), done by the Petitioner as part of the license renewal process revealed a finding of delinquent on his CORI record for assault and battery. The underlying facts relating to the charge involved his anal penetration of a 13 year old friend during a sleepover in August 2011 when he was 13 years of age. The incident had also been witnessed by the victim’s 10 year old brother. (Exhibit A.)
- 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 based upon her son’s disqualifying background check. Ergo, EEC determined that the Respondent was not suitable to hold a family child care license. See 606 CMR 109(3), 14.12(2)(a) and 14.13 (1) and (2). She was so notified in a letter dated December 20, 2016. (Exhibits A and B.)
- The Respondent filed a timely appeal on January 5, 2017. (Exhibit C.)
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 downplaying of the extremely serious original charge and her refusal to ensure that her son was out of the home during family day care hours. The reviewers also noted that the Respondent’s son had denied the allegation and demonstrated no rehabilitation.
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 and their household members. 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 son’s CORI finding or whether EEC provided her and her son with the opportunity to respond to his 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. Given that the Respondent’s son was found guilty of sexual assault on a minor that occurred as reently as 2012, and, she has declined to take steps to ensure that her son is not home during family day care hours, the Petitioner has acted well within its discretionary authority in determining that the Respondent is not suitable for licensure as a day care provider.
Accordingly, the Petitioner’s Motion for Summary is ALLOWED.
Division of Administrative Law Appeals,
DATED: April , 2017