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John Hope Settlement House, Inc. v. Rhode Island Department of Children

Superior Court of Rhode Island

May 9, 2017

RHODE ISLAND DEPARTMENT OF CHILDREN, YOUTH & FAMILIES; JAMIA MCDONALD in her Capacity as Acting Director; LAURA KIESLER in her Capacity as Chief of the Licensing Division Appellees

         Providence County Superior Court

          For Plaintiff: Peter Petrarca, Esq.

          For Defendant: Patricia M. Hessler, Esq. Kevin J. Aucoin, Esq.


          LICHT, J.

         John Hope Settlement House, Inc., d/b/a John Hope Day Care Center (John Hope or the Center) appealed the revocation of its Child Care Program License by the State of Rhode Island Department of Children, Youth and Families (DCYF or the Department). Jurisdiction is pursuant to G.L. 1956 § 42-35-15.


         Facts and Travel

         John Hope has operated a day care in Providence for over forty-five years. Starting in August 2013, DCYF placed them on probationary status for reasons not in the record.[1] R. Ex. 3 at 1; see also R. Ex. 5 at 1. Since that time, the Center has been on probation, except for a two-week period and a four-week period. R. Ex. 14, Hr'g Tr. 10:15-11:5, Dec. 9, 2016 (hereinafter Hr'g Tr.). By August 31, 2016, the Center was approaching a continuous one-year period of having been on probation. R. Ex. 5.[2] As probationary licenses are only valid for twelve months, with a possible six-month extension, DCYF required John Hope to prepare and discuss a corrective action plan towards attaining compliance. Sec. 42-72.1-5(6); R. Ex. 5.

         After a meeting in mid-September, John Hope submitted a corrective action plan. However, during a site visit on October 27, 2016, [3] DCYF identified three regulatory violations that they claimed "impacted the safe operation of the program." R. Ex. 9. First, DCYF "found that there was one child care staff person, " Charmaine Roberts, "working with children notwithstanding a notice of disqualification for child care employment." Id. Second, a different child care worker, Margaret Valerio, [4] had been employed "without any documentation that [that] employee had been subjected to a criminal background check." Id. Finally, the Center failed to inform DCYF that its site coordinator had resigned, creating a vacancy in a key position. Id.; R. Ex. 13 at 11 (hereinafter Hr'g Decision). Based on these discoveries, on October 28, 2016, DCYF sent John Hope a letter informing the Center of the Department's intention to revoke its child care license. R. Ex. 9.

         DCYF and John Hope representatives met on November 7, 2016 to discuss these violations. Hr'g Tr. 41:7-17. However, the Department notified John Hope via a letter dated November 15, 2016 that DCYF had revoked its license pursuant to the DCYF Child Care Program Regulations for Licensure (Regulations), section two, IV.A. R. Ex. 3 at 2. This revocation was to be effective at the end of business on November 29, 2016. Id. at 1. John Hope sought an administrative appeal. During the pendency of this appeal, the parties agreed to stay the revocation. DCYF's Mem. at 4.

         Hearings were conducted on December 9 and 23, 2016 before Hearing Officer Benjamin Copple. A total of six witnesses testified at the hearings.[5] DCYF called Veronica Davis, Chief of Licensing Regulation for the Department, as its first witness. She testified to the events that led to the issuance of the revocation letter, Hr'g Tr. 8:13-9:1, 9:23-10:8, the probationary history of the Center, Hr'g Tr. 10:9-12:6, and the monitoring a day care facility undergoes when on probation, Hr'g Tr. 13:7-15:18. She also testified about a meeting discussing with John Hope "a plan of corrective action which would outline the steps and how the program would come into compliance." Id. at 18:1-3. Additionally, Ms. Davis discussed two subsequent monitoring visits, both conducted by Margy Ryan, a DCYF Licensing Specialist. It was during the latter visit, on October 27, 2016, that the violations that led to the revocation of the Center's license were discovered. Id. at 28:3-32:12. Ms. Davis then described the steps the Department took after discovering the violations, including verifying the underlying information, deciding the appropriate course of action, and meeting with Center representatives. Id. at 38:4-39:16, 41:7-44:13, 45:8-48:9.

         Ms. Ryan was the Department's second witness. She first described how the monitoring process worked generally, starting with a check of "each classroom, viewing the classroom staff/child ratios, checking the condition of the classrooms, [and] checking the bathroom facilities for the children." Id. at 63:20-23. Next, she followed with an examination of the required records, including "child records, staff records, fire drills, professional development plans and certifications from staff." Id. at 64:1-3. After summarizing the general procedure, Ms. Ryan went on to describe her two visits to the Center. Specifically, she discussed the violations she discovered that day: the disqualifying information in Ms. Roberts's file, id. at 66:19-68:24; the missing fingerprint records for Ms. Valerio, id. at 70:3-14; and the absence of a site coordinator, id. at 70:16-72:4.

         The Department's final witness was John Duggan, a Licensing Aid for the Department. He testified to his practice when performing background checks on prospective child care employees. Namely, he "run[s] a DCYF clearance and a master file clearance, and [then] send[s] the results letters of those clearances to the respective agencies." Id. at 79:12-14, 87:11-90:20, 92:24-97:20. At 10:55 AM on September 1, 2016, Mr. Duggan e-mailed a clearance result letter for Ms. Roberts to the Center. Id. at 82:7-8; R. Ex. 10 at 1. This letter stated that Ms. Roberts "had indicated involvement in investigation(s) that were not of a disqualifying nature." Hr'g Tr. 82:9-15; R. Ex. 10 at 2. However, Mr. Duggan sent a follow-up e-mail seven minutes later asking the recipient to "[p]lease disregard my previous e-mail, " noting that "[t]he wrong box was checked off." Hr'g Tr. 82:20-83:22; R. Ex. 10 at 3. The corrected clearance results letter, attached to this e-mail, indicated that "Department Records show that there is disqualifying information on record for this applicant." Hr'g Tr. 83:6-8; R. Ex. 10 at 4. Mr. Duggan further testified that he could not recall whether he received a subsequent phone call about the matter. Hr'g Tr. 84:1-13, 85:10-16.

         John Hope's first witness was Tracy Richotte, [6] an Administrative Assistant at the Center. After describing her job duties, id. at 101:21-103:8, Ms. Richotte turned to the issue of Ms. Roberts. She testified that the Center received two e-mails in short succession regarding Ms. Roberts's background check, and that she "was informed of the second one the day after" receiving the first. Id. at 103:20-104:19. Ms. Richotte stated that she indeed did call Mr. Duggan, who told her that "there was just a complaint, nothing else." Id. at 104:20-106:4. She also testified that the requisite documentation was in Ms. Valerio's file, contrary to DCYF's allegations. Id. at 112:4-8. Ms. Richotte also admitted that she had "received nothing after the second notification that said that [Ms. Roberts] was therefore qualified." Id. at 122:17-19.

         After Ms. Richotte, John Hope called Vanessa Dailey, the Center's Operations Finance Manager. Ms. Dailey testified that upon being informed that Ms. Valerio did not have a criminal background check in her file, she looked into Ms. Valerio's file and found such a check there. Id. at 125:5-15, 127:4-15. However, Ms. Dailey conceded that her examination of the file occurred after Ms. Ryan's visit. Id. at 148:1-4.

         The final witness to testify was JoAnn McDowell, Director of the John Hope day care and after school programs. Ms. McDowell testified first about the departure of the Center's site coordinator. Id. at 157:19-159:22. She asserted that the Center delayed notifying DCYF of the site coordinator vacancy because they "were advertising" and hoping they "would be able to take what was a permanent site coordinator." Id. at 160:3-6. Ms. McDowell agreed that the Center "had the intention of telling DCYF of what was going on." Id. at 160:10-12. Upon cross-examination, however, Ms. McDowell admitted that John Hope did not notify DCYF of the site coordinator's departure, despite knowing that they were required to report any significant changes to the Department as soon as it occurred. Id. at 178:11-18. Ms. McDowell also testified to what she had heard regarding Ms. Roberts's hiring and her disqualification. Id. at 168:9-173:3. Finally, Ms. McDowell agreed that if there were something "untrue" on Ms. Ryan's monitoring report, Ms. McDowell would point that out to Ms. Ryan. Id. at 180:6-20.

         Hearing Officer Copple issued a decision on February 21, 2017 upholding DCYF's decision. Subsequently, John Hope appealed to this Court, which stayed the final revocation of the Center's license until resolution of this appeal.


         Standard ...

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