          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Aa to Zz Childcare and Learning Center,       :
                        Petitioner            :
                                              :
                   v.                         :       No. 651 C.D. 2018
                                              :       SUBMITTED: April 9, 2019
Department of Human Services,                 :
                      Respondent              :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                       FILED: May 1, 2019

             Aa to Zz Childcare and Learning Center (Center) petitions for review
of an adjudication of the Department of Human Services (Department) revoking the
Center’s certificate of compliance to operate a child day care center. Having
determined that the undisputed facts support the legal conclusion that the certificate
was properly revoked, we affirm.
             The pertinent facts are as follows. Located in Hummelstown, PA, the
Center opened in 2004 with 120 employees. (Finding of Fact “F.F.” No. 1.) The
incident that precipitated the revocation occurred on February 1, 2017, when A.B.
(Employee) took a group of children downstairs at 4:20 p.m. and returned upstairs
one hour later leaving an apparently sleeping five-year-old autistic child (Child)
without staff supervision for forty-one minutes.1 (F.F. No. 4.) During the transition,
Employee also left a second child without supervision for one minute.2 At 5:50 p.m.,
staff turned off the lights, locked the doors, and exited the building. There was no
plan in place for ensuring that no children remained behind before leaving for the
day. (F.F. No. 19.) When Child’s mother (Mother) arrived at the Center for pick-
up, the two on-site employees remaining (the Closers) did not have keys to open the
door and a third one had to come and do so. At 6:02 p.m., Child was reunited with
Mother. Consequently, for approximately one quarter of the time that Child was
unattended, the Center was locked and dark. Even though Child was not physically
injured, he appeared pale and frightened and “did not want the lights off in his home
for a week after the incident.” (F.F. No. 7.)
               On February 2, 2017, the Center terminated Employee’s employment.
(F.F. No. 14.) In addition, following receipt of a February 2 complaint regarding the
incident, a certification representative from the Department, Lauren Gard, conducted
a February 3 complaint inspection. (F.F. No. 3.) As a result of that inspection, which
included reviewing surveillance videotape, Gard prepared a February 8 inspection
summary citing the Center with violating 55 Pa. Code § 3270.113(a)(1), the
regulatory provision requiring children in a day care center to be supervised at all
times. (F.F. No. 15.) Gard’s summary also included corrective action for the Center,
which it implemented. (F.F. Nos. 16 and 17.) Subsequently, the Department issued
a letter therein advising the Center of the revocation decision. (F.F. No. 18.) In

    1
        Severely autistic with an Individual Education Plan, Child “is close to being nonverbal in
that he only repeats things that he hears and cannot engage in conversation, he does not know how
to use the telephone, could not reach out for help if he needed it, and has trouble transitioning from
Point A to Point B.” (F.F. No. 6.)
      2
        “Approximately three (3) years prior to February 1, 2017, the [Center] self-reported that they
left a child alone for a short period of time.” (F.F. No. 2.)



                                                  2
support, the Department cited the Center’s (1) failure to comply with the Human
Services Code (Code)3 and departmental regulations; and (2) gross incompetence,
negligence or misconduct in the operation of a child care program. (February 16,
2017, Letter at 1; Reproduced Record “R.R.” at 21a.) The Center’s request for a
hearing followed.
              At the June 2017 hearing before the Administrative Law Judge (ALJ),
the Department presented three witnesses: Mother, Gard, and supervisor Brenda
Lauren. Mother testified as to how Child’s autism diagnosis manifests, his special
needs, and how he behaved in the week following the incident. (F.F. No. 22.) “The
picture [Mother] painted of [Child] was one of a helpless, frightened child who was
not able to seek help in calling out to someone that he was still in the center or use a
telephone due to limitations related to his autism.” (Adjudication at 12.) Gard
described the complaint inspection and Lauren testified as to how the Department
arrived at its revocation decision. (F.F. Nos. 21 and 23.) The ALJ found the
Department’s three witnesses to be credible.
              The Center presented the testimony of co-owner A.Z. (Owner) and
called certification representative Jennifer Morgan as on cross. Owner testified as
to her educational and professional background, admitted to the February 1
violation, and described the corrective action taken thereafter. (F.F. No. 25.) In
addition, she described the Center’s hiring practices pertinent to Employee. 4 Morgan

    3
      Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§ 101 - 1503.
    4
       The Center hired Employee in August 2014. (F.F. No. 8.) Employee “met or exceeded
experience and training requirements for her position . . . and received more than six (6)
evaluations during her employment . . . .” (F.F. No. 13.) Even though the Center issued
disciplinary warnings to Employee in 2015 for posting negative things on Facebook and in 2016
for using a company laptop to work on her resume, her record was complete regarding clearances,
health records, and references. (F.F. Nos. 9, 10, and 12.) Nonetheless, her 2016 warning also



                                              3
testified as to “her job duties and role in the inspection summary and visits with the
[Center] after the February 1, 2017 incident.” (F.F. No. 24) (emphasis in original).
The ALJ found the testimony of the two witnesses to be credible.
              In the adjudication, the ALJ recommended denial of the Center’s appeal
based on the severity of the violation and her conclusion that the “[C]enter’s actions
amounted to gross incompetence and misconduct in operation.” (Adjudication at
12.) Subsequently, the Bureau of Hearings and Appeals (Bureau) adopted the
recommendation in its entirety. The Center sought reconsideration, and it was
granted. Ultimately, the Secretary of the Department issued a final order upholding
the Bureau’s decision. The Center’s petition for review followed.5 On appeal, we
consider whether the undisputed facts support the Department’s revocation of the
Center’s certificate of compliance.
              The applicable law provides as follows:

                     (b) The Department shall refuse to issue a license or
              shall revoke a license for any of the following reasons:
                      (1) [v]iolation of or noncompliance with the
              provisions of this act or of regulations pursuant thereto.
                    ....
                     (4) [g]ross incompetence,                 negligence      or
              misconduct in operating the facility.

Section 1026(b)(1) and (4) of the Code, 62 P.S. § 1026(b)(1) and (4) (emphasis
added).



provided: “In general your job performance has been below expectations over the last few months.
Please work towards meeting your job expectations as laid out in our staff handbook along with
your desire to be part of our team.” (F.F. No. 11.)
     5
       In May 2018, this Court granted the Center’s unopposed application for stay pending action
on the petition for review.


                                               4
             Turning to the applicable regulatory authority, the purpose of the
chapter governing child day care centers “is to provide standards to aid in protecting
the health, safety and rights of children and to reduce risks to children in child day
care centers.” 55 Pa. Code § 3270.2. In addition, the chapter “identifies the
minimum level of compliance necessary to obtain the Department’s certificate of
compliance.” Id. (emphasis added). As for supervision, the applicable regulation,
in relevant part, provides:

                    (a) Children on the facility premises and on facility
             excursions off the premises shall be supervised by a staff
             person at all times. Outdoor play space used by the facility
             is considered part of the facility premises.
                       (1) Each staff person shall be assigned the
             responsibility for supervision of specific children. The
             staff person shall know the names and whereabouts of the
             children in his assigned group. The staff person shall be
             physically present with the children in his group on the
             facility premises and on facility excursions off the facility
             premises.

55 Pa. Code § 3270.113(a)(1) (emphasis added).
             On appeal, the Center cites Gibbs v. Department of Public Welfare, 947
A.2d 233 (Pa. Cmwlth. 2008), in support of its contention that the Department was
required to conduct a more in depth investigation to prove that the Center was not in
compliance with the law and engaged in gross incompetence, negligence or
misconduct in operating its facility. Specifically, the Center maintains that the
Department failed to consider and/or investigate whether Employee was a competent
childcare professional and whether it was reasonable to leave Child in her custody.
In addition, it maintains that the Department failed to consider the Center’s thorough
vetting of Employee before hiring her and the Center’s actions in affording her



                                          5
training and instruction. Finally, the Center notes that it immediately fired Employee
after she failed to follow her training and instruction.
             By way of background, Gibbs involved a family child day care home.
The lapse in supervision occurred when Gibbs was watching children in her
backyard with fences on two sides, instructed her adult son/employee to assume
supervision, and entered the house for a private conversation with a parent. A two-
year-old child left the yard, crossed the dead-end road, and approached a neighbor.
Gibbs did not become aware of the child’s departure until the neighbor telephoned
her three minutes later. The Bureau affirmed the Department’s decision to revoke
Gibb’s certificate based on a determination that she failed to properly supervise
children and guard against them leaving her facility by not having a fully fenced-in
yard. Further, determining that even a single regulatory violation was sufficient for
revocation where the safety of a child was at stake, the Bureau concluded that
permitting a child to leave the yard constituted gross incompetence, negligence or
misconduct in operating a home day care center. Id. at 235.
             On appeal, we reversed, concluding that Gibbs did not leave a child
without supervision because she entrusted the children to an adult employee and
there is no requirement that the owner personally supervise children at all times. In
addition, we rejected the Department’s contention that the lack of a fully fenced-in
yard constituted a regulatory violation, noting that a fence is not a requirement for a
family child day care home. Further, we rejected the Department’s conclusion that
Gibbs was guilty of gross incompetence, negligence or misconduct simply by
permitting someone to assume supervision who failed to follow directions. To meet
that standard, the Department would have had to establish that entrusting supervision
to an adult for a short time itself satisfied that standard or that Gibbs knew her son



                                           6
to be unreliable. In the absence of such evidence, the Department was holding Gibbs
to a strict liability standard, which neither the Code nor the regulations provide. Id.
at 238.
              As the Department avers, Gibbs is distinguishable on both its facts and
the applicable law. The child in Gibbs walked across a dead-end road in a rural area,
with negligible traffic, and there is no indication that the child was at any increased
risk due to a specific diagnosis such as severe autism. In addition, the child in Gibbs
lacked supervision for three minutes whereas the lapse in the present case was for
forty-one minutes. Significantly, Child’s whereabouts in the instant case did not
even become an issue until Mother came to retrieve him and encountered a locked
and dark Center, in large part because of the admitted absence of a system to account
for the departure of every child. We can infer that the Closers were surprised to see
Mother.6
              As for differences in the applicable law, a family child day care home
is held to less restrictive legal standards than those that govern a child day care
center. See 55 Pa. Code Chapter 3290 (family child day care home) and Chapter
3270 (child day care center). By way of background, the number of children in a
family child day care home at any one time may not exceed six children unrelated
to the operator and only one caregiver is required. 55 Pa. Code § 3290.51. In
contrast, a child day care center can provide care for more than seven children
unrelated to the operator.
              Additionally, a child day care center is one of the legal entities that is
required to designate an individual to be responsible for daily operations, 55 Pa.

    6
      See Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods.), 721 A.2d 1152, 1156 (Pa.
Cmwlth. 1998) (appellate court must draw all reasonable inferences which are deducible from the
evidence in support of the factfinder’s decision in favor of the prevailing party).


                                              7
Code § 20.13, whereas a family child day care home is not. Pertinent here, the
designated individual need not have personal knowledge of a violation before
revocation or non-renewal. See, e.g., Miller Home, Inc. v. Dep’t of Pub. Welfare,
556 A.2d 1, 4 (Pa. Cmwlth. 1989) (person legally responsible for daily operation of
facility need not know of a staff person’s violations before revocation of a personal
care home license); McFarland v. Dep’t of Pub. Welfare, 551 A.2d 364, 367 n.6 (Pa.
Cmwlth. 1988) (failure to submit an acceptable plan to correct noncompliance items
need not be willful to constitute proper ground for refusal to renew certificate of
compliance for child day care center); Aggie v. Dep’t of Pub. Welfare, (Pa. Cmwlth.,
484 C.D. 2014, filed December 30, 2014), appeal denied, (Pa., 188 MAL 2015, July
21, 2015), slip op. at 11-127 (Department not required to prove that owner of a child
day care center knowingly acquiesced to the violations levied against her).
              In any event, the Department is authorized to revoke a certificate based
on even a single violation of its regulations. K.C. Equities d/b/a Little Steps Day
Care v. Dep’t of Pub. Welfare, 95 A.3d 918, 930 (Pa. Cmwlth. 2014); Altagracia De
Pena Family Day Care Ctr. v. Dep’t of Pub. Welfare, 943 A.2d 353, 356 (Pa.
Cmwlth. 2007); Pine Haven Residential Care Home v. Dep’t of Pub. Welfare, 512
A.2d 59, 61 (Pa. Cmwlth. 1986). In addition, corrective action taken after a
regulatory violation is irrelevant in determining whether to revoke a license.
Altagracia, 943 A.2d at 356; Colonial Gardens Nursing Home v. Dep’t of Health,
382 A.2d 1273, 1277 (Pa. Cmwlth. 1978). Further, the Department is authorized to
revoke a license for any of the five reasons enumerated in Section 1026 of the Code.
Colonial Gardens, 382 A.2d at 1275. In other words, any of the five reasons,
standing alone, can constitute sufficient ground for revocation. Id.

    7
      Section 414(a) of the Internal Operating Procedures of the Commonwealth Court provides
that an unpublished case may be cited for its persuasive value.


                                             8
               In summary, Employee permitted two young children to be
unsupervised, one with special needs; she went upstairs at which time children were
out of her sight and hearing;8 and she did not know the whereabouts of Child. In
addition, staff did not count or physically go from room to room to ensure that no
children remained before leaving for the day and no one remained in the locked
facility with Child. (F.F. No. 19.) The ongoing lapse in supervision resulted in a
vulnerable child remaining alone and in the dark for a significant time period such
that the undisputed facts warrant revocation of the certificate of compliance as a
matter of law.
               Accordingly, we affirm.



                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Senior Judge




    8
      The Department’s regulations define “supervise” as follows: “To be physically present with
a group of children or with the facility person under supervision. Critical oversight in which the
supervisor can see, hear, direct and assess the activity of the supervisee.” 55 Pa. Code § 3270.4.


                                                9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Aa to Zz Childcare and Learning Center,   :
                        Petitioner        :
                                          :
                  v.                      :        No. 651 C.D. 2018
                                          :
Department of Human Services,             :
                      Respondent          :



                                  ORDER


            AND NOW, this 1st day of May, 2019, the order of the Department of
Human Services is hereby AFFIRMED.



                                    _____________________________________
                                    BONNIE BRIGANCE LEADBETTER,
                                    Senior Judge
