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Marion's Quality Services, Inc. v. Nebraska Department of Health & Human Services

Supreme Court of Nebraska

January 30, 2015

MARION'S QUALITY SERVICES, INC., DOING BUSINESS AS IT'S A KIDZ WORLD CHILD CARE CENTER AND AS DEB'S LEARNING PLACE FAMILY CHILD CARE HOME IIII, A NEBRASKA CORPORATION, APPELLANT,
v.
NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGULATION AND LICENSURE/LICENSURE UNIT AND DIVISION OF PUBLIC HEALTH, ET AL., APPELLEES

Page 179

Appeal from the District Court for Lancaster County: Robert R. Otte, Judge.

James R. Place, of Place Law Office, for appellant.

Jon Bruning, Attorney General, Michael J. Rumbaugh, and James D. Smith for appellees.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 180

Wright, J.

NATURE OF CASE

Marion's Quality Services, Inc. (Marion's), is a Nebraska corporation doing business as It's a Kidz World Child Care [289 Neb. 983] Center (Center) and as Deb's Learning Place Family Child Care Home II (Home). In 2012, the Nebraska Department of Health and Human Services (DHHS) revoked Marion's licenses to operate the Center and the Home.

Following an appeal hearing, DHHS upheld the revocation of the Home's license but reversed the revocation of the Center's license, instead imposing additional probation and a civil penalty.

This appeal is governed by the Administrative Procedure Act, and Marion's appeals from the judgment of the district court which affirmed DHHS' disciplinary actions. For the reasons discussed below, we affirm the judgment of the district court.

SCOPE OF REVIEW

A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Kerford Limestone Co. v. Neb. Dep't of Revenue, 287 Neb. 653, 844 N.W.2d 276 (2014). See, also, Neb. Rev. Stat. § 84-918 (Reissue 2014). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007). Deference is accorded to an agency's interpretation of its own regulations unless plainly erroneous or inconsistent. Belle Terrace v. State, 274 Neb. 612, 742 N.W.2d 237 (2007).

FACTS

Marion's is owned by Richard Marion and Angela Marion, a married couple. The Center has been licensed since May 23, 2006, for up to 123 children. The Home has been licensed since August 28, 2002, for up to 12 children, but it has not been in operation for some years. DHHS is a state agency responsible for the enforcement of the Child Care Licensing Act.

[289 Neb. 984] On July 21, 2008, DHHS placed the Center on probation for 1 year and imposed a civil penalty for various violations relating to the responsibilities of the director and licensing process, child-staff ratio, and infant care and supervision. On April 10, 2009, DHHS extended the Center's probation another year (until July 21, 2010) because a busdriver had left two children in a van in subzero temperatures for approximately 10 minutes. Despite a citation for child abuse/neglect, the Center

Page 181

allowed the driver to transport children the following day.

On or about May 26, 2010, childcare inspection specialist Susanne Schnitzer conducted an onsite investigation of allegations of improper discipline at the childcare center of Marion's on West Dodge Road in Omaha (Dodge Center), which has since closed. Schnitzer found that one of the Dodge Center's staff members, Carla Marion, had inappropriately disciplined children by " thumping, kicking and purposely tripping along [with] throwing an object at a child and twisting the cheek of . . . another child." Carla Marion, Richard Marion's sister, resigned before the investigation concluded.

On March 14, 2011, the Center was placed on probation for another year based on various violations, including misbehavior by a member of the Center's staff and the director's failure to supervise and correct the behavior, despite several complaints from parents. During the investigation of the complaints, the Center was found to have violated a regulation requiring it to obtain additional background information from the appropriate law enforcement agency regarding one of its staff members.

On April 11, 2011, DHHS received a request to conduct a check for Cristina Carrizales on the Nebraska Central Registry of Child Abuse and Neglect and the Nebraska Adult Protective Services Central Registry, which is required for any prospective employee prior to beginning work at a licensed childcare. Although Carrizales did not have a criminal history, the Center's timecard records showed that Carrizales had begun working 2 weeks prior to the registry checks being completed.

[289 Neb. 985] On May 24, 2011, DHHS issued a " Notice of Revocation" to the Center. The notice was issued following DHHS' investigation into a complaint concerning events that took place on March 29, only 2 weeks after the Center had been placed on probation on March 14. The Center had employed two incarcerated felons who were on work release, Shannon Tays and Greta ...


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