STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
06 DHR 1880
Destiny Taylor
Petitioner,
v.
Division of Child Development
Respondent.
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DECISION
This matter was heard before Beecher R. Gray, Administrative Law Judge, on April 26,
2007 in Charlotte, North Carolina.
APPEARANCES
For Petitioner:
For Respondent:
Cory A. Williams
Cloud, Navarro & Williams, PLLC
1101 South Boulevard, Suite 201
Charlotte, NC 28216
COUNSEL FOR PETITIONER
Alexandra S. Gruber
Assistant Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27699-0629
COUNSEL FOR RESPONDENT
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. §§ 110-90(5), 110-98, 110-102(5), 110-105.2; N.C. Gen. Stat. §150B3(c); Child Care Rule 10A N.C.A.C. 09.1716(b), and .2206.
ISSUES
Whether Respondent improperly deprived Petitioner of property or acted erroneously
when it summarily revoked Petitioner’s license.
EXHIBITS
Petitioner did not offer any exhibits. Respondent’s Exhibits 1-81 were admitted into
evidence.
FINDINGS OF FACT
Based upon the exhibits admitted into evidence, and the sworn testimony of the
witnesses, the undersigned makes the following findings of fact:
Respondent’s Exhibit 8, a certified transcript of the August 9, 2006 hearing on the March 24,
2006 summary suspension of Petitioner’s license, was admitted by order of the undersigned
administrative law judge on April 26, 2007, as substantive evidence in the above-captioned
contested case.
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1.
Respondent, Division of Child Development, (the “Division”) is an administrative
agency of North Carolina State Government operating under the laws of the State of North
Carolina.
2.
The Division licenses approximately ninety-two hundred (9,200) family child care
homes and centers, of which approximately forty-two hundred (4,200) are family child care
homes. (T. p. 65).
3.
The Division issues between three-hundred seventy-five (375) and four-hundred
(400) administrative actions each year. (T. pp. 65-66).
4.
In the past fiscal year, thirty-two (32) of the four-hundred (400) administrative
actions the Division issued were revocations. (T. p. 66).
5.
The Division carefully documents the revocation decision-making process, and
the Division reviews the actions of its managers in determining whether a revocation should be
issued. (T. pp. 66-68).
6.
The Division maintains a “matrix” of administrative actions throughout North
Carolina, documenting the types of actions taken, as well as the reasons for the actions. (T. p.
74). In issuing an administrative action, the Division consults the matrix to maintain consistency
throughout the State and to ensure that child care providers are treated fairly. (Id.).
7.
By statute, the Division must consider the criminal history of any individuals over
the age of fifteen (15) who reside in the day care home when making determinations regarding
the safety of a day care home. (T. p. 37-38, R. Ex. 8, p. 52).
8.
The Division may “disqualify” providers with a criminal history or pending
indictments of crimes under N.C.G.S. § 110-90.2(3). (T. p. 75, 80-81). Disqualified providers
cannot care for children. (Id.).
9.
Respondent has demonstrated knowledge and expertise with respect to facts and
inferences within its specialized area of knowledge. i.e., child care and enforcement of the laws
and rules of North Carolina governing the operation of child care facilities.
10.
Destiny’s Children Childcare (“Destiny’s Children”), located at 5403 Peachwood
Drive, Charlotte, North Carolina, was licensed as a one-star family care home. (R. Ex. 8, p. 53).
Petitioner, Destiny Taylor (“Ms. Taylor”), is the licensee of Destiny’s Children. (Id.).
11.
Destiny’s Children Childcare had a capacity of 5 children and was licensed for
daytime care only. (R. Ex. 8, p. 77).
12.
On March 24, 2006, the Division summarily suspended Petitioner’s child care
license for Destiny’s Children based upon the agency’s findings that conditions in the home
presented an immediate danger to the health, safety, and welfare of the children receiving child
care at the home. (R. Ex. 1). The Division’s summary suspension was based upon Petitioner’s
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arrest on ten (10) counts of aiding and abetting the commission of a crime on March 24, 2006
involving her boyfriend, Annunkeas Barnette. (Id.). The summary suspension also was based
upon Ms. Taylor’s duty to identify to the Division all adults residing in the family care home,
regardless of which shifts the facility operated. (R. Ex. 8, p. 78). Ms. Taylor did not inform the
Division that Mr. Barnette was residing in the family care home. (R. Ex. 8, p. 52).
13.
The Concord City Police Department (“Police”) conducted an investigation into a
number of vehicle burglaries in Concord and adjacent cities. (R. Ex. 8, p. 19). The Police
obtained a license plate number from one of the burglary scenes and traced the number back to a
vehicle rented from Carolina Rent-A-Car. (Id.). Carolina Rent-A-Car subsequently identified
Destiny Taylor as the individual who had rented the car used in the burglary. (Id.). Ms. Taylor
admitted that she rented the automobiles in question. (Id.).
14.
Although Ms. Taylor rented cars for her boyfriend, Annunkeas Barnette, on a
number of occasions, (R. Ex. 8, pp. 100-01), Ms. Taylor did not identify Mr. Barnette as an
additional driver when she rented the cars for Mr. Barnette, nor did she pay the extra fee for an
additional driver to the rental car company. (T. p. 105, R. Ex. 8, p. 104). Mr. Barnette paid for
the cost of the rental cars. (R. Ex. 8, p. 105). Ms. Taylor never asked Mr. Barnette where he got
the money to pay for the car rentals, although she knew he was looking for a job. (T.p. 106, R.
Ex. 8, pp. 100, 105).
15.
As a result of the Concord police investigation, Ms. Taylor was indicted on
multiple counts of possession of stolen property and accessory before the fact to a felony and, on
March 24, 2006, Ms. Taylor was handcuffed and arrested in her home. (R. Ex. 8, p. 36). A total
of thirteen (13) warrants were issued for Destiny Taylor’s arrest. (R. Ex. 8, p. 26).
16.
Because the Police suspected that children would be present in the home at the
time of Ms. Taylor’s arrest, the Division was contacted. (R. Ex. 8, p. 69). At the time of her
arrest, there were several children present in Ms. Taylor’s home, and two Division consultants
removed the children from Ms. Taylor’s home. (R. Ex. 8, p. 28). Some of the children present at
the time of Ms. Taylor’s arrest visibly were upset. (T.p. 22, R. Ex., p. 72).
17.
Petitioner ultimately was indicted on thirteen (13) misdemeanor and felony counts
relating to Mr. Barnette’s alleged criminal activities, which include charges that Mr. Barnette
used rental cars procured by Petitioner to break into parked automobiles and steal electronic
equipment such as CD players, video game platforms, jewelry, computers, camcorders, and
personal property. (R.Ex. 7).
18.
Throughout Petitioner’s home, Respondent’s consultant observed a number of
electronic devices such as TV’s and DVD players, some of which were later identified as having
been reported stolen. (T.pp. 24, 30-31, 33).
19.
As of the date of the hearing in the above-captioned matter, all thirteen (13)
misdemeanor and felony counts filed against Petitioner in Cabarrus County still were pending.
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(T.pp. 26-27 R. Ex. 7).
20.
Although Petitioner denied that Mr. Barnette resided in her home, male clothing,
shoes and toiletries in current use were found in her home at the time of her arrest. (T. pp. 23-24,
R. Ex. p. 74). Male clothing also was found hanging in one of Ms. Taylor’s closets, and there
were male shoes both in the closet and on the floor of Ms. Taylor’s master bedroom. (R. Ex. 8,
p. 74). Male toiletries were located on Ms. Taylor’s bathroom sink. (R. Ex. 8, p. 74).
21.
The testimony of Petitioner with respect to the issue of whether Mr. Barnette
resided in her home at the time of her arrest was not credible. When confronted with the male
clothing and other personal items found in her home, Petitioner initially told Respondent’s
consultant that the items were being “stored” at her home by her cousin. (T. pp. 101, 111).
During Respondent’s investigation, Petitioner never told any of Respondent’s representatives
that her cousin lived at her home. (T.pp. 104, 111-12). At the summary suspension hearing,
Petitioner’s mother testified that Petitioner’s cousin lived with Petitioner. (T.pp. 113-14). At the
hearing in this matter, Petitioner denied that her cousin lived at Petitioner’s home. (T.p. 104).
Similarly, when confronted with the male personal items found in her bathroom, Petitioner could
not remember if she told Respondent that those personal items belonged to her son. (T.p. 105).
22.
The Division’s proposed administrative action, which explained the basis for the
revocation of Petitioner’s child care license, clearly indicates that the revocation was based, in
part, upon the Division’s belief that Mr. Barnette resided in Petitioner’s home and that Petitioner
failed to submit his name for the required criminal background check. (R. Ex. 3). Petitioner was
given an opportunity to respond to the proposed action, which describes in detail the items found
at Petitioner’s home which led Respondent to believe that Mr. Barnette resided with Petitioner.
(Id.). Petitioner’s response does not explain why the clothing or toiletries were found at her
facility. (R. Ex. 4). Rather, Petitioner stated in her response that she “explained to [Mr.
Barnette] . . .because he was an ex-convict, he couldn’t come around until after 6:00 p.m.
Because I never knew when anyone from child care resource would visit.” (Id.). Based upon
this evidence, the undersigned finds that Mr. Barnette was residing in Ms. Taylor’s home at the
time Ms. Taylor was arrested.
23.
Petitioner knew that Mr. Barnette was on probation from prison, and had a
criminal history. (T. pp. 106-07, R. Ex. 4). Petitioner believed that Mr. Barnette broke into her
own home at one point, after she saw her TV at Mr. Barnette’s mother’s house. (T.p. 107, R. Ex.
8, p. 131). Despite this knowledge, Petitioner never notified the Division that Mr. Barnette was
living in her home and, as a result, the Division neither had checked Mr. Barnette’s criminal
record nor approved him to be around children in the home. (R. Ex. 8, p. 52).
24.
After Petitioner’s arrest, the Division checked Mr. Barnette’s criminal history and
determined that it was extensive and included weapons charges and convictions, as well as drug
charges and charges for violent crimes. (R. Ex. 8, p. 71). At the time of his arrest, Mr. Barnette
was on supervised probation. (R. Ex. 8, p. 104).
25.
The primary purpose of child care regulation in the State is defined as providing
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for the health, safety and developmental well-being of children in child care facilities. N.C. Gen.
Stat. 110-85.
26.
The North Carolina Child Care Commission has authority, under N.C. Gen. Stat.
§ 110-88 and 110-90 to adopt, and has adopted, rules relating to the enforcement of the child
care laws of North Carolina, including rules relating to inspection of child care facilities, to
investigation of abuse and neglect reports, and to administrative actions such as the Division’s
decision to revoke a child care license.
27.
Respondent has the authority, under N.C. Gen. Stat. §§ 110-98, 110-102.2 and
105.2, to issue various types of administrative actions against child care facilities for violations
of the Child Care Act, including revocation of a child care license. See also N.C. Gen. Stat. §
110-90(5), 10A N.C.A.C. 09.1904.
28.
The North Carolina Department of Health and Human Services, Division of Child
Development, is statutorily mandated to obtain criminal background checks of child care
providers and members of the household in family child care homes over the age of 15 years.
N.C. Gen. Stat § 110-90.
29.
Respondent has the authority, under N.C. Gen. Stat. § 110-90.2, “to prohibit a
child care provider from providing child care” based upon the criminal history of a child care
provider.
30.
“Criminal history” is defined as including “pending indictment of a crime,
whether misdemeanor or felony, that bears upon the safety and well being of children.” N.C.
Gen. Stat. § 110-90.2(3).
31.
Petitioner was indicted for possessing stolen property and for being an accessory
before the fact to a felony, and was subsequently arrested on these charges. Based upon these
indictments, Respondent properly determined that revocation of Petitioner’s license was
necessary to protect the children in Petitioner’s care pursuant to N.C. Gen. Stat. § 110-90.2(3).
32.
By knowingly failing to identify Anunkeas Barnette as a resident of the family
care home, Petitioner prevented Respondent from carrying out its duty to obtain a criminal
records check of a member of Petitioner’s household pursuant to N.C. Gen. Stat. § 11090.2(2)(c).
Based upon the foregoing Findings of Fact, and giving due regard to the demonstrated
knowledge and expertise of the agency with respect to facts and inferences within its specialized
knowledge, the undersigned makes the following:
CONCLUSIONS OF LAW
1.
The Office of Administrative Hearings has jurisdiction over the parties and the
subject matter of this contested case under Chapters 110 and 150B of the North Carolina
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General Statutes.
2.
All parties correctly have been designated and there is no question as to
misjoinder or nonjoinder and the notice of hearing was proper.
3.
The burden of proof in this matter rests with Petitioner.
4.
As the licensed operator of Destiny’s Children Childcare, Petitioner is subject to
the provisions of Chapter 110 of the North Carolina General Statutes and the North Carolina
Child Care Rules adopted pursuant thereto.
5.
A review of the whole record shows that Respondent’s administrative action
revoking Petitioner’s license is supported by the preponderance of the evidence wherein
Petitioner remains under indictment for thirteen (13) misdemeanor and felony charges in
Cabarrus County and wherein Petitioner failed to provide a safe environment for children by not
identifying Annunukeas Barnette as residing in her licensed family child care home despite
Petitioner’s familiarity with Mr. Barnette’s criminal background.
6.
Respondent’s procedures afforded Petitioner notice and the opportunity to
respond to its proposed administrative action and Petitioner took full advantage of that right
afforded her.
7.
Petitioner’s failure to recognize the potential danger of permitting Mr. Barnette to
reside in the family child care home, given his criminal history, created an unsafe environment
and endangered the children in Petitioner’s care.
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned
makes the following:
DECISION
Respondent’s decision to revoke Petitioner’s license is supported by the evidence and is
affirmed.
NOTICE
The agency that will make the final decision in this contested case is the North Carolina
Department of Health and Human Services, Division of Child Development. The agency is
required to give each party an opportunity to file exceptions to this recommended decision and to
present written arguments to those in the agency who will make the final decision. N.C. Gen.
Stat. § 150-36(a). The agency is required by N.C. Gen. Stat. § 150B-36(b)(3) to serve a copy of
the final decision on all parties and to furnish a copy to the parties' attorney of record and to the
Office of Administrative Hearings.
This the 20th day of June, 2007.
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__________________________________________
Beecher R. Gray
Administrative Law Judge
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A copy of the foregoing was mailed to:
Cory A. Williams
Cloud, Navarro & Williams, PLLC
1101 South Boulevard, Suite 201
Charlotte, NC 28216
COUNSEL FOR PETITIONER
Alexandra Gruber
Assistant Attorney General
North Carolina Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602-0629
ATTORNEY FOR RESPONDENT
This the 20th day of June, 2007.
____________________________________
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, North Carolina 27699-6714
Telephone: (919) 733-2698
FAX: (919) 733-3407
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