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Montes v. State ex rel. Oklahoma Department of Human Services

Court of Appeals of Oklahoma, Division II

June 26, 2019

CANDICE MONTES, Plaintiff/Appellant,
v.
STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF HUMAN SERVICES, RESTRICTED REGISTRY REVIEW COMMITTEE, Defendant/Appellee.

          Mandate Issued: 07/24/2019

          APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY, OKLAHOMA HONORABLE PAUL HESSE, TRIAL JUDGE

          Ky D. Corley, BAKER, IHRIG & CORLEY, P.C., Stillwater, Oklahoma, for Plaintiff/Appellant

          Bonnie Clift, ASSISTANT GENERAL COUNSEL, DEPARTMENT OF HUMAN SERVICES, Oklahoma City, Oklahoma, for Defendant/Appellee

          P. THOMAS THORNBRUGH, JUDGE.

         ¶1 Plaintiff, Candice Montes, seeks review of an order by the district court affirming a Department of Human Services (DHS) administrative hearing officer's (AHO's) decision that sustained the agency's decision to list Plaintiff's name on Oklahoma's child care "Online Restricted Registry" (Restricted Registry or Registry). For the reasons set forth below, we find the decisions by the trial court and DHS to list Plaintiff on the Registry are erroneous as a matter of law and must be vacated and set aside.

         BACKGROUND

         ¶2 DHS is the state administrative agency required to establish and maintain the Restricted Registry pursuant to 10 O.S.2011 & Supp. 2018 § 405.3. This matter concerns the DHS Restricted Registry Review Committee's decision to list Plaintiff on the Registry following a finding by DHS that allegations of "lack of supervision and threat of harm" to a child while in Plaintiff's care were "substantiated."

         ¶3 The facts underlying the "substantiated" finding are largely undisputed. In August 2015, Plaintiff, the owner and director of a newly licensed child care facility in Yukon, inadvertently left a sleeping 3-year-old child in a locked vehicle after Plaintiff had returned to the facility and gone inside. Although the length of time the child was left unattended remains unclear, there was no evidence the child, who was awake and crying when he was found, sustained physical harm. The incident occurred on the first day of the school year and Plaintiff had picked the child up, along with several other children, from pre-school before returning to the facility to drop the children off. The children were "unloaded" by a facility worker while Plaintiff waited in the vehicle, and Plaintiff had then gone to Sonic and to make a drive-through bank deposit without realizing the child in question had mistakenly been left in the back seat. The temperature outside was in the low 70s, which was lower than normal for that time of year.

         ¶4 After receiving a referral about the incident and making an investigation, DHS child welfare service investigators prepared and submitted a report to the Canadian County District Attorney. The report reflected the investigators' conclusion that "[b]ecause [the child] was carelessly left in an unattended vehicle and made unsafe," the allegations against Plaintiff were "substantiated." Plaintiff did not appeal this finding. The district attorney did not file criminal charges.

         ¶5 DHS thereafter forwarded its report to the DHS Restricted Registry Review Committee (Committee), together with a copy of the notice sent to Plaintiff and a document indicating that Plaintiff had not appealed. DHS then informed Plaintiff that her name had been "proposed to be recorded" on the Restricted Registry based on "a substantiated or confirmed finding of abuse or neglect that occurred to a child(ren) while in the care of a licensed child care program."

         ¶6 Under DHS rules, an individual whose name is placed on the Registry--i.e., a "registrant"--is prohibited from ownership or licensure of, or employment in, a child care program as well as from "unsupervised access to children" in a program. Okla. Admin. Code (OAC) 340:110-1-10.1(a). A registrant may not seek removal from the Registry for at least 60 months. OAC 340:110-1-10.1(p).

         ¶7 Plaintiff appealed the Committee's decision to the DHS Appeals Unit, and an AHO heard the matter in January 2017. DHS called one witness, Jennifer Towell, who described her job as including oversight of the Registry. She stated that the Committee's decision to list Plaintiff was based on its consideration of the DHS investigative report, which was in evidence and included a description of the investigators' interviews with "collateral" witnesses who stated that Plaintiff attempted to "cover up" the incident primarily by instructing staff not to discuss it. Towell also said the Committee had access to the "full child welfare referral report," which was not in evidence, and also considered it significant that Plaintiff had not appealed DHS's "substantiated" finding. She said the Committee conducted no independent interviews with DHS investigators or the collateral witnesses, however. The document entered into evidence reflecting Committee members' votes does not make specific findings concerning criteria the Committee was required to consider. It is not clear from Towell's testimony whether those criteria were considered, and even if they were considered, how they factored into the Committee's decision.

         ¶8 Plaintiff called three witnesses, including herself. Plaintiff testified that she had not appealed the "substantiated" finding because she admitted that the child had been left in her car unattended, even though she disputed the two-hour time that DHS claimed the child was alone, and stated the time length was no more than 15 to 25 minutes. She said that a DHS investigative worker also told her that appealing the decision would be pointless because Plaintiff admitted the underlying incident; however, Plaintiff said she did not understand that her right to continue in the child care business could be lost.

         ¶9 Plaintiff also denied attempting to "cover up" the incident, but said she was told by her DHS child care licensing worker not to discuss the matter with anyone until the investigation was complete, and to tell her staff likewise. Plaintiff's other witnesses supported Plaintiff's contention that, after the incident, she took immediate and substantial steps to assure that the facility had more consistent policies and procedures in place to assure that all children were accounted for at all times, and that she had worked with child welfare officials to implement those policies.

         ¶10 At the close of the evidence, the AHO left the record open to allow Plaintiff to submit additional evidence to support her contention that the time the child was left unattended was no more than 15 to 25 minutes. [1] The transcript of the proceeding reflects confusion as to how the evidence was to be submitted and conveyed to the AHO, but both parties were then allowed to make supplemental, written "closing arguments" that refer to the evidence and are included in the administrative record. The AHO thereafter entered an order affirming the Committee's decision "based on [a] substantiated finding of abuse or neglect... that occurred to a child while in the care of a licensed child care program," but making no further findings.

         ¶11 Plaintiff appealed to district court. After review of the administrative record, including a transcript of the proceeding before the AHO and the parties' briefs, the trial court affirmed the AHO's ruling, stating merely that DHS had acted "within [its] statutory authority" by placing Plaintiff's name on the Registry ...


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