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In Re Bacudb , 99 CDSS 01
Respondent’s licenses to operate two adult residential facilities were revoked based on findings that the respondent had a sexual relationship with a mentally ill client. [H&S 1550(c)] The department held that such a relationship is extremely destructive to a resident and cannot be allowed to happen again. The department also determined that, although respondent was very remorseful, it would be against the interest of the public to allow respondent to hold the trusted position of a licensee. The department stated that respondent’s conduct reflected a failure to consider his duty as a care provider or the best interests of the client, thus constituting "conduct inimical."
The department also found that respondent violated the regulations by failing to: furnish toiletries and maintain hot water at safe temperatures [H&S 1550(a) and (b), Regs. 80088, 85088]; maintain medical logs, provide proper medical/dental care for a client, and hire competent staff who could properly manage medications [H&S 1550(a), Regs. 80065, 85065]; furnish window screens and keep toxic materials secured [H&S 1550(a) and (b), Regs. 80087, 85087]; and maintain client records [H&S 1550(a) and (b), Regs. 80070, 85070]; and that cause existed to revoke the license based upon each of the violations.
In Re Bailey , 99 CDSS 02
Respondent’s license to operate a large family day care home was revoked based on a finding that she repeatedly operated over her licensed capacity and left children without adult supervision. [H&S 1596.885, Regs. 102402 (formerly 102393), 102416.5, 102417(a)] The department held that although respondent maintained a very nice and clean facility, she committed serious violations, had been warned or cited, and then committed the same or similar violations. The department determined that respondent’s assertions of future compliance could not be given full faith. Respondent also violated children’s personal rights by leaving infants unattended in car seats and leaving children in the care of a minor. [H&S 1596.885, Regs. 102423(a)(2)] Each violation committed by respondent justified revoking her license. The license was revoked based upon each individual violation as well as upon the violations jointly.
In Re Berset , 99 CDSS 03
Respondent had a series of drug related convictions and other misconduct continuing through 1993. The department excluded respondent in 1997, based on the determination that his convictions and past conduct were inimical to clients in care and the people of this State. [H&S 1558(a)(2) and (4)]. The department held that individuals with substance abuse problems are not fit for employment in facilities housing children or dependent adults. The department explained that: "An employee of such a facility must exercise patience, self control, discretion and good judgment at all times. The health and safety of facility residents is dependent upon employees exercising these skills. . . . [T]hose under the influence of intoxicating substances are unable to exercise these skills."
In Re Biggers, et al. , 99 CDSS 04
Respondents, who were mother and daughter, held a license to operate an adult residential facility. The department revoked their license based on the finding that a third respondent (the son and brother of the licensees) had regular sexual relations with a young developmentally disabled adult female client over a of six year period. [H&S 1550] Respondent son was an employee at the facility and impregnated the client twice. Respondent licensees were aware of his conduct and failed both to protect the resident’s personal rights [Regs. 80072] and to provide the level of care and supervision appropriate for the resident victim [Regs. 80078(a), 85078]. The department also excluded respondent son from all licensed facilities. [H&S 1558, Regs. 80072]
The department also held that respondent licensees violated the regulations when they failed to: report to the department the son’s sexual relationship with a client and the two pregnancies [Regs. 80061(b)(1)(C)]; report the two pregnancies to the client’s physician [Regs. 85075.3]; and submit fingerprints for the respondent son [H&S 1522, Regs. 80019]. Finally, respondents’ conduct was inimical to the health, morals, welfare, or safety of residents in care and the people of the State of California. [H&S 1550(c)]
In Re Chin , 99 CDSS 05
Respondent was licensed to operate a family day care home since 1991. On September 8, 1997, a seventeen month old boy asphyxiated on a grape at the facility and was pronounced dead shortly after being transported to the hospital. Respondent failed to call for emergency assistance, or to provide any treatment for the infant. Emergency assistance was called after the infant's father arrived at the facility in response to a call from the Respondent. Respondent's certification for CPR had expired and she was not current in her pediatric first aid.
Respondent's request for a continuance was denied but she was permitted a continuance for the defense portion of the proceeding. Respondent declined and, prior to the hearing, withdrew her notice of defense. The matter was conducted as a default hearing.
Regarding certain procedural matters, the department noted that respondent did not seek judicial relief in Superior Court under Government Code section 11524(c) after the denial of her continuance request. Moreover, the department affirmed that it is authorized by H&S Code section 11520(a) and Title 1, Calif. Code of Regulations section 1014(c) to prosecute the matter after respondent's withdrawal of her notice of defense.
On the merits, the department revoked respondent's license based on her failure to contact emergency medical personnel and to provide emergency care when a child in care stopped breathing [H&S 1596.885, Regs. 102423(a)(2)]. The department also found that cause to revoke respondent’s license existed due to her failure to have the required preventative health practice training [H&S 1596.885, 1596.886], her failure to maintain the required records for children in care, her operating over capacity, and her failure to keep toxic materials inaccessible to children. [H&S 1596.885, Regs. 102421, 102416.5, and 102417]
In Re DeSomers , 99 CDSS 06
Respondent requested an exemption for a criminal conviction in order to accept employment at an RCFE as a nursing assistant. Respondent had a misdemeanor child endangerment conviction in 1996 which involved drug and alcohol addiction. Respondent began AA & NA programs after her conviction. At the time of the hearing, respondent had been clean and sober for 11 months but was still on probation. Respondent did not disclose her conviction when completing her criminal record statement.
The department excluded respondent from all licensed facilities and denied her exemption request, holding that: respondent’s conduct leading to her conviction was inimical to the health, morals, welfare and safety of the people of this state; and insufficient time had elapsed, since she had become clean and sober, to indicate substantial rehabilitation. [H&S 1569.58(a)(3), 1569.17(c), Regs. 87219]
In Re Dodd , 99 CDSS 07
Respondent sought a criminal record exemption for several convictions between 1983 and 1996, including three felonies, so that he could visit an ARF operated by his mother and sister. Respondent was a drug addict who asserted that he was rehabilitated since he had not used drugs for two years, was employed, and was active in his church. Respondent indicated on his criminal record statement that he did not have any felony convictions.
The department denied respondent’s request for an exemption [H&S 1522(g)(1)] and excluded him from all licensed care facilities [H&S 1558(a)(3)] based on its findings that less than two years had passed since respondent’s release from the California Rehabilitation Center, and he was still on parole. The department determined that it was still too early in the rehabilitation process to conclude that respondent poses no risk to clients. The department recognized that respondent’s assertions of rehabilitation are no substitute for a track record of accomplishment.
In Re Eckard , 99 CDSS 08
Respondent held a license to operate a large family day care home when she married R. Champion in 1996. Champion frequently assisted respondent with certain some day care activities while living at respondent’s facility. The department revoked respondent’s license upon finding that: (1) in 1984, Champion undressed and got into a shower while a 14 year old was showering (she ran out and locked herself in another room); (2) in 1984, Champion got into bed with the same 14 year old and said he wanted her; (3) in 1979-1980, Champion engaged in four or five oral sex acts with an 8 year old child; and (4) in 1993, Champion struck his then wife in the face and broke the windshield of his car in anger. There was no allegation that Champion acted inappropriately with children in care or during day care hours.
Based on Champion’s past conduct, the department held that his presence at the facility would create a potential risk to the safety and well being of the children in care. The department concluded that respondent’s continued licensure would be inimical to the health, morals, welfare and safety of children receiving services and of the people of this state. [H&S 1596.885(c)]
In Re Ellis , 99 CDSS 09
Respondent had provided foster care in her home since 1986 and enjoyed good reputation in her community. In September 1995 respondent married S. Royston and he resided at the facility through the following December. Royston had a 1994 felony conviction for gross vehicular manslaughter while intoxicated. He had been sentenced to five years probation, and was required to undergo both therapy for alcohol abuse and counseling for anger management. Respondent was aware of Royston’s conviction when he moved into the facility.
The department revoked respondent’s license based on her: failure to submit Royston’s fingerprints for a criminal record clearance; failure to submit Royston’s criminal record statement to the department; and failure to notify the department that Royston was residing at the facility. [H&S 1522, 1550(a)-(d)] The department held that respondent’s conduct was inimical to the health, safety, morals, and welfare of children in care and the people of this state, and demonstrated a present inability to conform to all laws and regulations governing foster care licenses. Id . The department also recognized that Royston’s past conduct and respondent’s violations created a risk to the well being of children in care at the facility.
In Re Freeman , 99 CDSS 10
Respondent was convicted in 1973 for assault with a deadly weapon (which included use of a firearm) and he sought a criminal record exemption in order to continue his employment at a licensed facility. Respondent had not been arrested or incarcerated since 1978 and had become an ordained minister. Respondent dedicated most of his time to working with seniors and underprivileged youth.
The department denied respondent’s exemption request, holding that "despite respondent’s commendable rehabilitation efforts and religious mission, he is statutorily precluded from being granted an exemption by the Department and, consequently, cannot be present at or employed by the facility licensed by the department." [H&S 1522(g)(1), 1558(a)(3)] Under section 1522(g)(1), an exemption may not be granted for a "violent felony" as that term is defined in Penal Code section 667.5(c). Penal Code sections 657.5(c)(8) and 12022.5 state that "violent felony" includes a conviction for assault with a deadly weapon which is a firearm. The department concluded that since respondent’s conviction was for a "violent felony," he is not eligible for an exemption and must be excluded from all licensed facilities. [H&S 1558(a)(2) and (3)]
In Re Galbraith , 99 CDSS 11
Respondents (husband and wife) were jointly licensed to operate a foster family home in 1993. In 1996, Mr. Galbraith was convicted of two counts of lewd and lascivious acts with a child under the age of 14. He had molested two foster children who were living with the respondents and under their care at the time. Mrs. Galbraith was unaware of her husband's molestations and removed him from the house when his actions were disclosed. At the time of the hearing, Mr. Galbraith was incarcerated in state prison. Mrs. Galbraith asserted that she should not be disciplined for her husband’s conduct.
The department revoked the respondents' license based on Mr. Galbraith's convictions and conduct [H&S 1550(a), (b), and (c), 1552(d), Regs. 87061, 87064, 87072, and 89019]. The department held that only a single license was issued to the respondents and, as one of them had committed acts for which revocation is required, that license must be revoked. The department's action under H&S Code section 1550 is against the license and section 1550 does not authorize separating the guilty person from the innocent person. To be licensed, Mrs. Galbraith must apply for and obtain a new license.
In Re Golston et al. , [Order to Compel Discovery] 99 CDSS 12
In this matter, the department brought a motion to compel discovery under Gov. Code section 11507.7 when respondents did not comply with the department’s written discovery request made under Gov. Code section 11507.6. [H&S Code section 1551 provides that administrative actions brought by the department to suspend, revoke, or deny a license are governed by Gov. Code section 11500 et seq.] Respondents further failed to provide discovery at the pretrial conference and then did not comply with an ALJ’s order at the pretrial conference that they produce their discovery on or before a specified date.
The ALJ hearing the motion issued two orders on the matter. The ALJ determined that "respondent’s counsel violated, without substantial justification, a lawful order of the presiding officer, to wit, the Prehearing Conference Order, and failed, without substantial justification to comply with a discovery request, to wit, the Department’s discovery request . . ., each failure constituting a contempt within the meaning of Government Code section 11455.10(e)." The ALJ sanctioned the respondents by ordering specified witnesses and documents be excluded from the hearing on the merits for being "untimely disclosed."
In Re Green , 99 CDSS 13
Respondent held a license to operate a foster family home. While licensed she failed to protect one foster child from physical attacks by two older foster boys, and at times failed to provide adult supervision. Respondent also spanked one child and failed to provide medications to another.
The department revoked respondent’s license finding that, although respondent was a caring person who attempted to provide a nurturing home, revoking her license was necessary to protect children in care. Respondent failed to properly discharge the duties and responsibilities of a foster parent in that she failed to leave the foster children under the supervision of a responsible adult during her absences from the facility. [Regs. 87064(a)] In addition, respondent violated the personal rights of a child by spanking him [Regs. 87072(a)(3)], and failed to properly assist a child with taking medication [H&S 1550(a), Regs. 87075(d)]. Respondent’s violations were cause for revocation under H&S Code section 1550(a) and her conduct was inimical to the interests of children in care and the people of this state under H&S Code section 1550(c).
In Re Jenkins , 99 CDS 14
Respondent applied in April, 1997, for a license to operate a family day care home. Respondent had been previously licensed to operate a day care home but that license was revoked by the department on January 23, 1995. Respondent’s earlier license was revoked on the grounds that she had failed to provide adequate supervision for children in her care, had operated over her licensed capacity, had inflicted corporal, humiliating, and demeaning punishment, and had improperly given medications to children. Respondent continued to provide day care after her license was revoked and in September, 1996, was convicted for violating H&S Code section 1596.80 (operating a child care facility without a license).
The department denied respondent’s application for a new day care license holding that, although respondent may have operated her facility to the satisfaction of some parents, "there is no evidence as to respondent’s present fitness to operate such a business in light of the unsatisfactory history of performance . . . ." Respondent’s application was denied on the grounds that she had violated the applicable licensing statutes [H&S 1596.885], had been convicted of a crime [H&S 1569.885(d)], and had engaged in conduct inimical to clients in care and the people of this state [H&S 1596.885(c)].
In Re Lewis , 99 CDSS 15
Respondent applied to be licensed as a certified family home but had several criminal convictions from 1973 through 1996. In correspondence to the department, respondent denied certain facts regarding his last conviction which, as it turned out, he had admitted when he was arrested. Respondent was still on probation for his last offense but claimed to be completely rehabilitated. He had two sons and regularly attended church.
The department held that while his strides toward total rehabilitation are commendable, respondent’s refusal to accept responsibility for his criminal acts and his willingness to lie to the department in order to achieve his personal goals make him an unacceptable risk at this time. The department denied respondent’s application based on the grounds that he had several criminal convictions [H&S 1550(d); see, also, H&S 1522(a)(1)]; and his conduct resulting in those convictions (as well as when dealing with the department) was inimical to the health, morals, welfare or safety of a person receiving care or the people of this state [H&S 1558(a)(2); See, also, H&S 1550(c)].
In Re Mgbafilike , 99 CDSS 16
Respondent sought an exemption for two 1995 criminal convictions. He had been convicted for inflicting corporal punishment on his wife and willfully harming his stepchildren. After his convictions, respondent violated the court’s order by returning to his spouse’s home. On that occasion he again abused his wife and her children. Respondent provided a written explanation of his convictions to the department that was misleading and omitted significant facts.
The department rejected respondent’s contention that he was not guilty, holding that the issue of respondent’s guilt may not be re-litigated at the administrative level and that his plea of nolo contendere in his criminal case is conclusive evidence of guilt upon which the administrative judge must rely. [H&S 1522(f)]
The department also determined that, notwithstanding respondent’s evidence of satisfactory work at the facility and some course work, his conduct, denial of any culpability, and correspondence with the department demonstrated a failure on his part to realize or take responsibility for abusing his wife and stepchildren. Respondent’s conduct also demonstrated an unwillingness or inability to comply with the law and, accordingly, he failed to present substantial and convincing evidence to support a reasonable belief that he is now rehabilitated. [H&S 1522(g)] The department excluded respondent from all licensed facilities based on respondent’s convictions [H&S 1522, 1558(a)(3), Regs. 80019(a) and (f)(3)] as well as his conduct which was inimical to the health, welfare, morals, and safety of clients in care and the people of this state [H&S 1558(a)(2), Regs. 80019(a) and (f)(3)].
In Re Powell , 99 CDSS 17
Respondent sought an exemption in order to reside at his mother’s certified foster family home, having been convicted for committing misdemeanor burglary (using stolen credit cards). In communications with the department regarding the conviction, respondent denied any involvement in the crime.
The department held that both the original crime and the subsequent misrepresentations to the department "demonstrate that respondent does not possess the requisite good character to warrant an exemption for his criminal record." [H&S 1522(g)(1)] The department stated that it "must be able to trust the truth and veracity of those who deal directly with foster children especially when reporting any incidents that may arise as well as engendering honesty as a positive roll model for the children." The department determined that respondent’s criminal conduct and false statements to the department were inimical to the health, morals, welfare and safety of others and the people of this state. The department denied respondent’s exemption request based on his convictions and conduct [H&S 1522(b) and (g)(1), Regs. 80019(a), and (g), and 88019(a)] and excluded him from all facilities licensed by the department [H&S 1558(a)(2) and (3)].