| Date: | 08/19/2009 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | OC-08-288 |
The Department of Early Education and Care (EEC) issued an emergency suspension to Respondent, family child care licensee, for the following violations: failing to provide direct supervision of the children in her care; leaving an unapproved and unqualified person who had not had a required background check in charge of the children; failing to inform EEC of a new person in the household; failing to keep the outdoor space free of hazards; and, failing to maintain accurate child care records. Respondent also had a "51B" report issued against her regarding a child in her family child care program. Sufficient evidence is found to justify the imposition of the emergency suspension under G.L. c. 28A, d 102 MCR 1.07(5) based on a bundle of conditions and circumstances that existed around the time period of April 8 - 16, 2008.
On April 18, 2008, pursuant to G. L. c. 28A, §13 and 102 CMR 1.07(5), the Petitioner, the Department of Early Education and Care (EEC), issued to the Respondent, Raymonde Comeau, an "Order to Protect Children: Notice of Emergency Suspension" of her large family child care operations at 876 Crescent Street, Brockton, MA 02301, under her EEC License # 2079332. ("A") She was found to have:
[F]ailed to provide direct supervision of children, utilized unapproved
and unqualified staff that have not undergone required background
record checks, failed to provide an environment free of neglect,
failed to inform EEC of a household composition change,
failed to keep her outdoor space free of hazards, and failed
to maintain accurate child care records … [creating] an emergency situation necessitating EEC to immediately suspend her large
family child care license. ("A")
The Respondent filed a timely Notice of Claim for a hearing. ("B") EEC referred the matter to the Division of Administrative Law Appeals (DALA) for a hearing on the Emergency Suspension, which was held June 3, 2008 at the offices of DALA, 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to 801 CMR 1.01, et seq., the formal rules of adjudicatory practice and procedure, and 102 CMR 1.07(5) and 1.08.
Various documents are in evidence. (Exs. 1 - 4. Exhibit 4 was filed post hearing and is a Sprint invoice containing a list of telephone numbers the Respondent claims include telephone numbers of parents of children in her family child care she called while she was in the Dominican Republic.) The EEC Family child care regulations at 102 CMR 8.00, et seq., are in evidence. ("C") Two tapes were used. EEC presented the testimony of its staff members: Family Child Care Licensor Marilu Pachebat; Family Child Care Supervisor Diana Phillips; and Associate Commissioner Michael Avery. Ms. Comeau testified on her own behalf and presented the testimony of her husband Yves Comeau, who is also her approved child care assistant. Both parties made arguments on the record.
1. Raymonde Comeau has been licensed from May 2004 by EEC to operate a large family child care program. She has been authorized to care for up to ten children with use of an approved family child care assistant. She has operated her program at 876 Crescent Street in Brockton. Her program is called, "Ray's Happy Daycare." She has about nineteen years of experience in child care. ("A". Exs. 1 & 3. Testimony)
2. Ms. Comeau's program operates in the basement of a multi-residential building, and is reached using a side entrance off the driveway. She and her husband, Yves Comeau, live in the building. Once inside there is a common area hallway with a door off it leading to a stairway to the basement. The program area has a kitchen area and then an open area where the child care occurs. There is also a separate area for infants off this main area. There is a bedroom and bathroom off a hallway in the basement. The hours typically run from 8:00 AM to 5:00 PM, Monday through Friday. (Ex. 1. Testimony)
3. Mr. Comeau is an approved EEC regular child care assistant. He does not have the qualifications for being a licensed family child care provider under EEC regulations. He can "work under the general supervision of a family child care provider … alone … with up to six children … for up to twenty-five (25) hours in a twelve (12) month period or up to eight (8) hours in a seven (7) day period." ("C" at 102 CMR 8.05(3). Ex. 1. Testimony)
4. On her most recent EEC application in February 2007 to continue to operate the family child care program, Ms. Comeau listed household members as only herself and her husband. By April 2008, a family friend called "Briscoe" had temporarily moved into the basement bedroom. His name is Johnny Victor and he works as a mechanic. He is not typically present during the family child care hours because he would have already left for work. At times, he has been identified as Ms. Comeau's brother-in-law. Ms. Comeau never informed EEC about the presence of "Briscoe" in the household as she is required to do once he has resided there for at least thirty consecutive days. He needs to undergo a criminal background records check (CORI) and a Department of Social Services (DSS) background records check. ("A", "B" & "C" at 102 CMR 1.05; 8.02; and, 8.15(6). Exs. 1 & 3. Testimony)
5. The outdoor space Ms. Comeau uses for child care has to be "safe, hazard-free," with no "debris, broken glass, chipped, flaking or peeling paint … tools and construction materials," with any hazards "made inaccessible to children … [by being] removed, fenced by a sturdy, permanently installed barrier that is at least four feet high, or otherwise secured, as appropriate." ("C" at 102 CMR 8.06(2))
6. By mid-April 2008, Ms. Comeau's outdoor child care approved play space contained "debris, peeling paint, tools and construction materials and other potentially harmful items," including;
windshield wash and antifreeze, rakes, paint roller, broken tile/ceiling, pieces of short plastic fencing, a lawn mower
and a lawn spreader. ("A". Ex. 1. Testimony)
7. By April 14, 2008, Ms. Comeau had not had time to clean up the play area outside. She had been held back in accomplishing this by inclement weather conditions. (Testimony)
8. Most of the children in Ms. Comeau's family child care program came through Child Development and Education, Inc., which issues vouchers to parents for use at Ms. Comeau's program. She contracted with the company. This arrangement is allowed under the EEC family child care regulations. The company also helps with transportation of the children, and provides other services. At 102 CMR 8.01, a Family Child Care System is defined as:
Any entity or person who, through contractual arrangement, provides to family child care homes that it has approved as members of said system, central administrative functions including, but not limited to, training of operators of family
child care homes; technical assistance and consultation to
operators of family child care homes; inspection, supervision, monitoring, and evaluation of family child care homes; referral
of children to available family child care homes; and referral of children to available health and social services, provided, however, that family child care system shall not mean a placement agency
or a child care center.
9. During 2008, the contact person for Ms. Comeau's child care arrangement with Child Development and Education, Inc. has been Isabel Afonso. On March 13, 2008, she conducted a home visit at Ms. Comeau's family child care program. She arrived to find Ms. Comeau not present although her husband was, and he was caring for the children. During the visit, Ms. Comeau arrived. Ms. Afonso felt there might be over-enrollment, so she stayed until all the Child Development and Education, Inc. children had arrived. On April 8, 2008, Ms. Afonso conducted another visit. Ms. Comeau was not present but a woman named Marie was caring for six children. Ms. Afonso did not know Marie. Ms. Afonso was able to obtain Ms. Comeau's cell telephone number from Marie. Ms. Afonso contacted Ms. Comeau by cell phone and left a message to call back. This occurred, and Ms. Comeau, according to Ms. Afonso, reported that she was hospitalized with a thyroid problem. Ms. Comeau asked Ms. Afonso to provide her with back-up child care for her program covering the rest of the days of the week; April 9, 10 and 11, 2008. Ms. Afonso began to contact parents using Ms. Comeau's child care program to determine whether any needed back-up child care and found none of them needed it. She spoke to one parent who reported that Ms. Comeau had contacted her the prior night to report her program would be closed. On April 11, 2008, Ms. Comeau contacted Ms. Afonso to report that she was still unable to conduct her child care program. Ms. Afonso asked her if she needed back-up care for the children for Monday, April 14, 2008, but Ms. Comeau, according to Ms. Afonso, stated she did not. Ms. Afonso did not hear back from Ms. Comeau. (Exs. 1 & 2. Testimony)
10. Ms. Afonso went to Ms. Comeau's program on April 14, 2008. She was refused entry by a woman who told her no program children were present. But Ms. Afonso heard and saw children there, so she reported this to her Director. EEC was then informed. (Exs. 1 & 2. Testimony)
11. That same day, EEC sent Marilu Pachebat, Ms. Comeau's family child care licensor, to investigate the complaint. She was able to enter about 2:30 PM using the side door off the driveway which was unlocked. She reached the basement program area and saw a woman she did not know who identified herself as Marie Sanon. She saw four children, a five, six and three year old, napping on the floor. Ms. Sanon was holding a sixteen month old child. Upon viewing the infant-toddler area, she saw two, two year old children. Ms. Pachebat learned the sixteen month old was Ms. Sanon's child. Ms. Sanon said she was an approved assistant. Ms. Pachebat asked for Ms. Comeau, and Ms. Sanon said she did not know where she was. While Ms. Pachebat was there another child arrived and a parent picked up a child. Ms. Pachebat asked Ms. Sanon to view the records on the children. Ms. Sanon had trouble locating them, but found records covering the four children who were enrolled through Child Development and Education, Inc. who were present, and the records on two other children who were present who were private clients. Ms. Pachebat understood from what Ms. Sanon told her that she had been providing care for the program children for about four weeks. Ms. Pachebat learned from EEC that Ms. Sanon had a pending application to become a certified assistant filed on March 27, 2008. ("A". Exs. 1 & 2. Testimony)
12. Before leaving about 5:00 PM, Ms. Pachebat ordered Ms. Sanon to end the child care once the parents came to pick up the children, and to inform them of this order. Child Development and Education, Inc. was also notified of this order to be effective April 14, 2008. EEC contacted parents using Ms. Comeau's program, and learned from some of them that Ms. Comeau was quite often not on the premises. One parent stated she had gone to drop off her child at the program on April 10, 2008, and had found present only a man who identified himself as Ms. Comeau's brother-in-law, so the parent did not leave her child. ("A". Exs. 1 & 2. Testimony)
13. The following morning, Ms. Pachebat and her supervisor, Diana Phillips, arrived at the program to observe the activities at the premises. They arrived about 8:25 AM. At about 8:30 AM, from their car they saw a woman leave the premises with two children using the side door by the driveway. They did not speak to her. At about 9:00 AM, they tried to gain entry, but the door was locked. They used a doorbell and knocked, but no one came to the door. They left to look at records on Ms. Comeau's program, and to talk to staff at Child Development and Education, Inc. While there, they learned confusing information as to who the children were who were attending Ms. Comeau's child care program. They understood there were about twelve children, all with varying schedules they could not determine. They understood that Child Development and Education, Inc. had information that Ms. Comeau was in the hospital. ("A". Exs. 1 & 2. Testimony)
14. Ms. Pachebat and Ms. Phillips returned to the child care facility about 9:45 AM. They found the side door into the common area unlocked. They proceeded to the basement entrance, and called down the stairway. In response, a young male about nine to ten years old came up the stairs toward them. He had on a coat and backpack. He said he was alone and waiting for a ride to school. He said he did not live here. He said his name was Philip. He was not talkative. He said a man living in the basement bedroom let him in. Because Philip was alone, some unknown man had given him entry, and since the door to the common area had been open, Ms. Phillips decided to get advice from the EEC Associate Commissioner Michael Avery as to whether they should call the Brockton Police. He agreed they should. ("A". Exs. 1 & 2. Testimony)
15. A Brockton Police Officer arrived about 10:00 AM. He entered the building with Ms. Pachebat and Ms. Phillips using the unlocked side door. The young boy was at the top of the basement stairs. They all entered the child care area. No one was there. Philip told the Police Officer which school he attended, and said someone from the child care program drove him to school each day. He said his mother worked at a nursing home in Randolph. He identified the man who had let him inside this day as "Brisco," and that he had left for work. There was no child care information on Philip. The Police Officer called Philip's school and was given contact information for his mother. The Officer called her. She gave verbal permission for the Officer to bring her son to his school. The Officer told Ms. Pachebat and Ms. Phillips that the mother confirmed her son had been left at the site to be transported to school as he said. She was surprised and upset no one was there to take her son to school. Once the Officer brought Philip to school, he learned from the school that there were no attendance problems with Philip. A police report was filed on this incident. The Police Officer, EEC and the school all filed G. L. c. 119, § 51A reports with DSS on the incident concerning Philip. ("A". Exs. 1 & 3. Testimony)
16. EEC contacted Philip's mother after this. She reported that she understood several persons worked for the child care program, and that Ms. Comeau was often not on-site. She understood that Ms. Comeau was now out of state. She told EEC that Ms. Comeau had assured her that someone would be at the child care facility to transport her son to school. The arrangement she had included her son returning to the child care program after school. Given what happened, Philip's mother told EEC she would not continue this arrangement anymore. ("A". Ex. 1. Testimony)
17. Ms. Comeau and her husband had left on April 8, 2008 for the Dominican Republic to attend to an emergency situation involving a family member. Marie Sanon routinely cleaned the child care facility, usually spending two hours at a time, and usually coming in the early morning hours. She often came with her young child. Due to the emergency situation requiring her to leave the country, Ms. Comeau placed Ms. Sanon in charge of any children who showed up for child care. She knew Ms. Sanon had training in first aid and CPR, and had received a certificate in child care from training taken at Home Health and Child Care Services, Inc. She also knew she had applied to EEC to become a certified child care assistant. She felt she was doing the right thing. Ms. Comeau had left a message for Ms. Afonso to notify parents using her program that she would not be there for a few days. She did not tell Ms. Afonso she was leaving the country. ("B". Testimony)
18. Ms. Sanon had Ms. Comeau's contact information. She was able to talk to her in the Dominican Republic on April 14, 2008 following the EEC visit by Ms. Pachebat to report the order to close the child care program. This prompted Ms. Comeau to use her cell phone to try to reach child care parents to be sure they no longer brought their children to her program while she was away. She was returning home on April 16, 2008 to resume her child care program on April 17, 2008. She called Ms. Afonso to tell her she would resume child care on April 17, 2008. ("B". Ex. 4. Testimony)
19. No attendance records were maintained for Ms. Comeau's child care program during the time period she was out of the country. ("B". Ex. 2. Testimony)
20. While she was still in the Dominican Republic, EEC had left messages on Ms. Comeau's cell phone to contact EEC. She did not speak to anyone at EEC after leaving for the Dominican Republic until after EEC work hours during the evening of April 16, 2008 when she left a voice mail message on Ms. Phillips' work telephone. (Ex. 1)
21. An EEC report was produced on April 17, 2008 based on the investigation done by Ms. Pachebat and Ms. Phillips. A list of non-compliance issues was produced. The report contained the following "determinations":
The Provider has failed to appropriately supervise the child
care children … has utilized unapproved individuals and individuals with inadequate qualifications, and in some instances, no background record checks, to care for the children in her absence.
A ten year old child was left in the care of a male unapproved assistant for an unspecified time period until this individual went to work … creating an emergency situation which endangered the life, health and safety of the child.
EEC has determined through collateral contacts, that there is a male individual who is potentially residing, but minimally, regularly on the premises of the child care home. Based on the fact that … [EEC] has not been aware of this individual, a background record check has not been completed.
Based on limited information, EEC has been unable to determine the location of the … Provider.
Based on insufficient information given, … [EEC] has been unable to compile a complete listing of all the children enrolled in the provider's home and the days and times of care. It is also questionable, based on some of the information gathered, that the provider has abided by her quota capacity.
Health and Safety issues were identified in the outdoor play area accessible to the children.
The Provider has failed to demonstrate and maintain the ability to care for the child care children entrusted to her care placing children in situations that endanger the life, health and safety of the children in her care. (Ex. 1)
22. This April 17, 2008 report formed the basis for subsequent action taken by EEC on April 18, 2008 when it issued to Ms. Comeau an Order to Protect Children: Notice of Emergency Suspension. The legal bases for the suspension covered the following:
A. The Provider failed to exercise direct supervision of
the children in her care - 102 CMR 8.10(2).
B. The Provider failed to leave children with suitable substitute
providers - 102 CMR 8.05(2)(c) and 8.10(1)(a).
C. The Provider failed to comply with minimum qualifications and responsibilities - 102 CMR 8.04(3) and 8.04(2).
D. The Provider failed to provide an environment free from abuse
and neglect - 102 CMR 8.12(6).
E. The Provider failed to notify EEC of her change in household
composition - 102 CMR 8.15(6), 1.05(1) and 606 CMR 14.05.
F. The Provider failed to maintain her outdoor space in a manner
free of hazards - 102 CMR 8.06(2).
G. The Provider failed to maintain accurate, complete and readily
accessible child care records - 102 CMR 8.13 and 8.31(4).
("A" & "C")
24. Ms. Comeau filed a timely request for hearing. ("B")
There is sufficient evidence to justify the imposition of the Emergency Suspension based on Ms. Comeau's conduct during the time period of April 8 - 17, 2008. The issue is not whether or not she had the right to immediately leave to attend to an emergency involving a family member in the Dominican Republic, but that during this time period her family child care program was dangerously operated, and should have been completely shut down. It was not, and the findings show that family child care continued to be carried on while she was away, and was not detected as being run improperly until the April 14, 2008 visit by Ms. Afonso, the same day visit by Ms. Pachebat, and the April 15, 2008 visit by Ms. Pachebat and Ms. Phillips. All the information contained in the April 17, 2008 EEC report that formed the basis for the emergency suspension action has been sufficiently proven.
The standard for determining whether or not an emergency situation exists is found in 102 CMR 1.07(5). EEC is able to suspend the license without first conducting a hearing when the licensee has failed "to comply with any applicable regulation," and as a result "an emergency situation [occurs] which endangers the life, health, or safety of children or staff present in the program or facility." ["C" at 102 CMR 1.07(5)(a)] The regulation goes on to explain: "The sole issue at the hearing" is whether EEC "has reasonable cause to believe that the licensee's failure to comply with any applicable regulation resulted in [such] an emergency situation." The regulation explains that a DSS G. L. c. 119, §51B report concerning the existence of any abuse or neglect having occurred at the program or during a program related activity, "shall be prima facie evidence that an emergency exists." ["C" at 102 CMR 1.07(5)(b)]
Ms. Comeau testified that she tried her best to contact Isabel Afonso of Child Development and Education, Inc. about her inability to conduct her program starting with the message to her on April 8, 2008, and then again contacting her on April 11, 2008 to explain she would continue to be closed. Although Ms. Afonso was not present to testify, the reports in the record along with the testimony of Ms. Pachebat and Ms. Phillips support a finding that Ms. Comeau did not state on April 8th that she was taking a plane to the Dominican Republic and would not be back to operate her program until April 17th. Ms. Afonso understood that Ms. Comeau was in the hospital for some condition. Ms. Comeau testified she contacted the private clients using her child care program and informed them of her absence, but the children continued in her program April 8 through April 14, 2008 with Ms. Sanon conducting the caregiving. Ms. Comeau acknowledges that Ms. Sanon was not a qualified assistant to do this for her program. Ms. Comeau did not take sufficient measures to ensure the health, safety and welfare of her day care children while she was out of the country.
Ms. Comeau also testified that she contacted Philip's mother that she would be gone and no one would be able to bring Philip to school in the mornings, but his mother understood just the opposite, that there would be someone to take her son to school.
It makes no sense to think that she knew otherwise and simply was dropping her son off at the program with no one to take her son to school and no one to be with him for the after school hours. This was the routine she had set up with Ms. Comeau. The police report notes that the school had no attendance issues with Philip, and that is support for finding Philip's mother expected her son would be brought to school as usual. Whether or not that arrangement was to be handled not by her husband but by "Brisco" in his absence does not matter. I do not find Ms. Comeau credible in regard to her claims that she fully and completely and effectively gave notice that she would not be operating her program between April 8-17, 2008.
This deficiency on her part to ensure the closure of her program while out of the country is not overcome by her efforts at calling the parents, EEC eventually, and Ms. Afonso, after Marie Sanon reported to Ms. Comeau the EEC order imposed on April 14, 2008. That is insufficient to overcome the harm already done by her actions by then. Children were left with no appropriate approved substitute assistant or assistants while she was gone, and she had reason to know this would be occurring. She decided that letting Ms. Sanon operate her program in her absence would be all right. If she was not sure every parent understood her child care program was not operating between April 8 - 17, 2008, then she should have contacted EEC for help instead of relying on Ms. Sanon to conduct the child care program.
As a result of Ms. Comeau's failure to take proper actions to ensure the closure of her program while she was gone, Philip was alone in the building having been let in by some male adult unknown to EEC, and with the side door left open. It appears that Philip was at the time a privately attending child within Ms. Comeau's program. Ms. Comeau never denied at the hearing that "Briscoe" had been residing in the basement bedroom for over thirty days, never explained why he this residency would not have had to be reported to EEC, and he s clearly not an approved assistant. The purpose for doing background checks on household members is very important to the protection of the childrens' safety and welfare. Moreover, the police were called in and the incident with Philip was reported to DSS by the police, by Philip's school and by EEC. By the time of this hearing, no outcome of the DSS matter had occurred, so that no "51B" had issued to be prima facie evidence to support an emergency situation, or no decision had been reached by DSS not to take any action as a result of the "51A" complaint. Nevertheless, the situation with Philip still shows a situation satisfying the criteria for being an EEC emergency situation within the reach of this emergency suspension.
Ms. Comeau asserts that her records on the children attending her program are in good order and that it was only because EEC had to gain information on April 14 and 15 from Ms. Sanon, that the records appeared to be unreliable and/or incomplete. That may or may not be so. EEC should have been able to locate these records at the program facility and found all the records in good order including all the schedules the children had, even without Ms. Comeau present. EEC did more and tried to learn the information needed on the children attending during April 8 - 16, 2008 from Ms. Afonso, but without success. Ms. Comeau's defense is insufficient to overcome this serious deficiency. This is not an unimportant matter, particularly when EEC finds the program still operating while Ms. Comeau is out of the country and is not able to easily contact her for answers.
EEC found conditions in the outside areas the child care children had access to on or about April 8-16, 2008, to be hazardous for them. I found credible the accounts given by Ms. Pachebat and Ms. Phillips as to their observations of conditions and as to what they put in the April 17, 2008 report. Ms. Comeau testified that inclement weather had prevented her from being able to clean up the area, but I do not find that to be a sufficient defense to this deficiency. It is not all right to wait to attend to these hazards only when the weather improves.
I find that Ms. Comeau is not credible when she testified that she all along meant to close down her program while she was out of the country. Ms. Sanon had training to be a child care assistant, so she may have not been an unskilled person to leave to run her program, but that was not Ms. Comeau's right to determine. EEC has to approve her as an assistant for Ms. Comeau's child care program, which had not occurred by then despite Ms. Sanon informing Ms. Pachebat that she was a qualified assistant. I believe Ms. Comeau fully intended to leave Ms. Sanon in charge of her program while she was gone from April 11 anyway, through April 16th. She did this either to make money or to help parents whom she felt would be stuck if she did not keep her program running. The reason does not matter. She is responsible for the dangerous conditions that resulted by her not being present while child care was occurring at her facility.
EEC has presented a bundle of conditions and circumstances that existed around the time period of April 8 - 16, 2008 to prove there was an emergency situation calling for the suspension of the child care program without first setting up a hearing about the matter. I find all the deficiencies as set forth by EEC against Ms. Comeau during this time period to be valid, and that they together support this emergency suspension. It is a combination of factors that has reasonably led EEC to conclude that Ms. Comeau is not able to maintain the health, safety and welfare of the children in her care.
For these reasons, I recommend that the emergency suspension be upheld.
DIVISION OF ADMINISTRATIVE LAW APPEALS
//s//
Sarah H. Luick, Esq.
Administrative Magistrate
DATED:8/19/09
