IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ardelia Terry, and Ardelia Terry :
Family Child Care Home, :
Petitioners :
:
v. : No. 568 C.D. 2020
: Submitted: February 6, 2024
Department of Human Services, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: March 6, 2024
Ardelia Terry (Terry), owner and operator of Ardelia Terry Family Child Care
Home (Child Care Home), petitions for review of an Order of the Department of
Human Services (DHS), Bureau of Hearings and Appeals (BHA), which adopted the
recommendation of an Administrative Law Judge (ALJ) that denied Terry’s appeals
of DHS’s decisions to emergently remove children from the Child Care Home and
to revoke Terry’s regular certificate of compliance (license) to operate the Child
Care Home. Terry argues DHS erred in ordering an emergency removal of the
children and revoking her license. After review, we affirm.
I. BACKGROUND
The Child Care Home has been in operation since November 1, 1998, out of
Terry’s personal residence in Pittsburgh. (ALJ Adjudication (Adjudication),
Findings of Fact (FOF) ¶¶ 1-3.) Terry is licensed to care for a maximum of six
children at a time and is the sole staff person. (Id. ¶¶ 4-5.) On May 20, 2019, Terry
was caring for two one-year olds, one two-year old, and one three-year old, all of
whom were in diapers. (Id. ¶¶ 6-7.) At 10:45 a.m., Terry left the Child Care Home
while the children were napping to drive to Target, which is 10 minutes away, to
“g[e]t something – it was, to [her] they looked like peas, but [her] son’s girlfriend
called them something else. They’re green and [the girlfriend] is from California
and she said she liked them[,] so [Terry] went there to get them.” (Id. ¶¶ 10-11, 14-
15.) Terry admitted this shopping trip was not an emergency and does not dispute
the four children were left unsupervised. (Id. ¶¶ 12, 16.) At the time, Terry’s adult
son and his girlfriend, who are not employees of the Child Care Home, were upstairs,
but Terry did not ask anyone to watch the children. (Id. ¶¶ 8, 11, 46; Adjudication
at 18.)
When Terry returned to the Child Care Home 30-35 minutes later, the three-
year old was on the front porch of the Child Care Home speaking with a woman who
was standing outside of the front gate along with two other women, none of whom
Terry knew. (FOF ¶¶ 17, 19-20, 45.) One of the women told Terry that she found
the three-year-old child three to four blocks from the Child Care Home, of which
Terry was skeptical. (Id. ¶¶ 21-22.) One of the women demanded Terry call the
parents, and the woman spoke with the father. (Id. ¶¶ 23-24.) He expressed gratitude
that nothing had happened to the child and the woman responded, “what the F do
you mean” and returned the phone to Terry. (Id. ¶ 25.) Terry took the three-year
2
old back into the Child Care Home and attempted to talk with the women, but one
of the women was “screaming[,]” so Terry returned inside. (Id. ¶¶ 26-27.) The other
three children were inside the Child Care Home. (Id. ¶ 26.)
About 20 minutes later, Pittsburgh police arrived on a report that a child was
wandering.1 (Id. ¶ 28.) Terry called DHS that same day and reported this incident.
(Id. ¶ 32.) On May 24, 2019, Kristen Court, a certification representative for the
Office of Child Development and Early Learning (Certification Representative),
conducted an unannounced inspection of the Child Care Home because DHS
received a complaint on or around May 22, 2019, that a three-year-old child was
found wandering the streets. (Id. ¶¶ 31, 33-35.) Certification Representative
interviewed Terry, who told Certification Representative that on May 20, 2019, “she
put the four children present at the [Child Care Home] down to nap around 10:45
a.m. and left the facility” to go to Target for “30 or 35 minutes.” (Id. ¶¶ 39-41, 45.)
Terry told Certification Representative that her son was upstairs sleeping at the time
in question, and she did not alert him that she was leaving the Child Care Home. (Id.
¶¶ 46, 48.) Terry also told Certification Representative that when she returned to
the Child Care Home, the three-year-old child was standing on the front porch and
there were three unknown women yelling at Terry. (Id. ¶ 49.)
Certification Representative prepared an inspection summary, summarized
how and why Terry left the children unsupervised, and cited Terry for regulatory
violations she observed during her investigation. (Id. ¶¶ 51-52.) In addition to
leaving the children unsupervised, DHS determined the following conditions existed
during the May 24, 2019 inspection:
1
Terry was criminally charged with four counts of felony grade child endangerment and
one summary offense. (FOF ¶ 67.) Due to uncooperative witnesses, the felony charges were
dismissed, and Terry pled guilty to one summary offense of disorderly conduct. (Id. ¶ 68.)
3
(2) The following hazards were observed accessible to the children in
care on the front porch:
i. A charcoal grill with a broken handle[;]
ii. A deep fryer with oil inside with a lid that was easily
removed[;]
iii. Stacked milk crates that were a potential tipping
hazard[;]
iv. A big black plastic garbage bag[;]
v. Other items of clutter.
The following other items were observed on the side of the home and
accessible to children:
i. A wood bow rake[;]
ii. Metal bed posts[;]
iii. Metal street sign[;]
iv. A weedwacker[;]
v. Two vehicle tires[;]
vi. Three stacked window air conditioner units[;]
vii. Five empty gasoline cans[;]
viii. Other items of clutter.
(Id. ¶ 53; Reproduced Record (R.R.) at 22.2) Certification Representative took
photos of these conditions. (FOF ¶ 54; Ex. C-2.) Terry did not dispute that the
photos Certification Representative took that day accurately depicted the conditions
outside the Child Care Home on the day the three-year old escaped, agreed that
children must pass through the front porch to enter the Child Care Home each day,
and agreed there was no fence to block the children from having access to the sides
of the Child Care Home. (FOF ¶¶ 70-72.) Certification Representative informed
Terry of her findings, and Terry provided Certification Representative with a written
statement detailing how and why she left the Child Care Home on May 20, 2019.
2
The pagination of the Reproduced Record does not comport with Pennsylvania Rule of
Appellate Procedure 2173, Pa.R.A.P. 2173 (requiring pagination to be in the form of an Arabic
number followed by a small “a”). We will utilize the pagination used by the Reproduced Record
for ease of reference.
4
(Id. ¶¶ 55-56; Ex. C-3.) Certification Representative summarized multiple violations
of DHS regulations in a May 24, 2019 inspection summary.
On May 28, 2019, Certification Representative returned to the Child Care
Home and handed Terry a Notice of Emergency Removal and conducted an
emergency removal of the children from the Child Care Home, which Terry
appealed. (FOF ¶¶ 59, 62; Emergency Removal Order, R.R. at 20-21.) On June 27,
2019, DHS mailed Terry a letter informing her that DHS was revoking her license
to operate a childcare center, which Terry also appealed. (Id. ¶¶ 63, 66; Revocation
Letter, R.R. at 12.) DHS “determined the emergency removal and licensing action[s]
were necessary because . . . the conditions constituted gross incompetence,
negligence[,] and misconduct in operating the [Child Care Home], and because . . .
the [Child Care Home] failed to comply with the Human Services Code[3] and [DHS]
Regulations.” (Id. ¶ 65.)
A joint administrative hearing was held before the ALJ on January 21, 2020.
DHS presented Certification Representative as its sole witness, and Terry also
testified. The ALJ found them both credible. (Id. ¶¶ 73-74.) The ALJ then issued
a Recommendation with an opinion explaining that DHS’s decisions to emergently
remove the children from the Child Care Home and to revoke Terry’s license “were
both based on essentially the same issues: [] [Terry] failed to comply with
regulations, and [] [Terry] engaged in gross incompetence, negligence, or
misconduct in operating the facility.” (Adjudication at 17.)
The ALJ first discussed Terry’s regulatory violations. She concluded DHS
properly cited Terry for a violation of 55 Pa. Code § 3290.18, relating to general
health and safety, because “[t]he underlying facts that caused [DHS] to cite a
3
Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§ 101-1503.
5
regulatory violation are not in dispute. . . . Terry, the sole care provider . . . left four
children ages three and younger at the [Child Care Home] and drove to the store to
buy something for her son’s girlfriend.” (Id. at 18.) The ALJ further concluded
DHS properly cited Terry for a violation of 55 Pa. Code § 3290.113(a), relating to
supervision, because “[t]he children at the [Child Care Home] were unfortunately
supervised by no one when [] Terry left them. [] Terry was not physically present
for around 30 minutes by her own testimony.” (Id.) Next, the ALJ concluded Terry
violated 55 Pa. Code § 3290.64, relating to toxics, and 55 Pa. Code § 3290.74(a),
relating to building surfaces. She explained that in relation to the violation for toxics,
“the child who escaped the facility was on the porch . . . in close proximity to two
bottles of windshield washer fluid and a container of cleaning wipes.” (Id. at 19.)
The ALJ further explained that in relation to building surfaces, the porch, and the
sides of the Child Care Home had items of clutter, such as a deep fryer, gas cans,
and stacked metal posts and signs. (Id.) In addition, the ALJ found the children
have to pass through the porch to get inside the Child Care Home, there is no barrier
blocking access to the side of the house, and the child who escaped was found on
the porch, so DHS properly cited Terry for the building surfaces violation. (Id.)
The ALJ then discussed whether Terry acted in a grossly incompetent or
negligent manner or acted with willful misconduct. The ALJ reasoned that because
“Terry left four small children alone[, this] absolutely demonstrates gross
incompetence, negligence[,] and misconduct. . . . [T]his is obviously a flagrant gross
deviation from the ordinary standard of care.” (Id.) In sum, the ALJ concluded DHS
“did not abuse its discretion in taking action to emergently remove the children in
[Terry’s] care and did not abuse its discretion in revoking [Terry]’s license[.]” (Id.
6
at 20.) By Order dated May 19, 2020, the BHA adopted the ALJ’s recommendation
in full. (BHA Order.) Terry timely petitioned this Court for review.
II. PARTIES’ ARGUMENTS
On appeal,4 Terry argues DHS “erred in removing [the] children [from the
Child Care Home] and [in] revoking [Terry’s] license.” (Terry’s Brief (Br.) at 24.)
Terry explains her son and his girlfriend were in the home and were in the “line of
hearing when T[erry] left.” (Id. at 27.) Terry next argues DHS did not present any
of the three women who found the three-year-old child as witnesses at the hearing,
so “[i]t must be presumed that those witnesses would not have been helpful to
[DHS’s] position.” (Id. at 27.) In addition, she argues there was no “competent”
evidence that the three-year-old child was wandering the streets. (Id.) Further, Terry
argues Certification Representative did not interview the parents of the three-year-
old child who escaped, and they are the parties “most interested in the gravity of the
incident.” (Id. at 28.) Terry explains the written statement she provided to
Certification Representative was only a summary of what the three women standing
outside accused her of, so as to not withhold any information from DHS. (Id.) Terry
also mentions that because her felony charges were dismissed, she pled guilty to one
summary offense of disorderly conduct, and there were “ missing witnesses[,]” “the
alleged gravity of the situation . . . cannot be sustained.” (Id. at 29.) Terry lastly
argues Certification Representative did not “identify any unsecured toxics, sharp,
4
Our standard of review is “limited to determining whether an error of law was committed,
whether constitutional rights were violated,” and “whether necessary findings of fact are supported
by substantial evidence.” Altagracia De Pena Family Day Care v. Dep’t of Pub. Welfare, 943
A.2d 353, 356 n.3 (Pa. Cmwlth. 2007).
7
pointed, cutting objects or toppling objects at all[,]” and the porch and sides of the
Child Care Home are not care areas. (Id. at 29-30.)
DHS responds that it properly conducted an emergency removal of the
children from the Child Care Home and revoked Terry’s license because she acted
with gross incompetence, negligence, and willful misconduct. (DHS’s Br. at 6, 9-
10.) DHS argues the ALJ had sufficient evidence to conclude Terry violated DHS
regulations by leaving the four young children unsupervised with no other staff
person and having hazardous items on her porch where the three-year-old child was
found and the side of the Child Care Home with no barrier preventing the children
from reaching these items. (Id. at 6-9.)
III. DISCUSSION
A. Emergency Removal
DHS conducted an emergency removal of the children from the Child Care
Home because it concluded Terry’s actions demonstrated gross incompetence,
negligence, and misconduct. DHS’s regulations provide that DHS may conduct an
emergency removal of children from a daycare facility “[i]f [DHS] finds evidence
of gross incompetence, negligence, misconduct in operating the facility . . . likely to
constitute an immediate and serious danger to the life or health of the [children.]”
55 Pa. Code § 20.37.
This Court addressed an emergency removal order in Colonial Manor
Personal Care Boarding Home v. Department of Public Welfare, 551 A.2d 347 (Pa.
Cmwlth. 1988). In Colonial Manor, a boarding home’s patients were emergently
removed because the home could not meet the personal care needs of the patients
who were previously held in a nursing home that lost funding to care for the patients.
8
Id. at 348-51. The Court concluded there was sufficient evidence of an emergency
because there were numerous observations of patients in need of critical care that
they were not receiving. Id. at 351. The Court also addressed an emergency removal
order in Liberty Manor Personal Care Home v. Department of Public Welfare (Pa.
Cmwlth., No. 979 C.D. 2014, filed April 17, 2015).5 In Liberty, the Department of
Public Welfare (DPW)6 emergently removed clients from the care home because it
became aware that the three individuals who made up the management structure
were likely going to be arrested. Id., slip op. at 17, 19. This Court concluded there
was evidence of an emergency because if these three individuals were going to be
removed from the facility, there would be no one in a management position to care
for the clients, and a personal care home must always have a qualified administrator.
Id. at 17-18.
Concerning what behavior constitutes gross incompetence, negligence, and
misconduct, Gibbs v. Department of Public Welfare, 947 A.2d 233 (Pa. Cmwlth.
2008), is instructive.7 In Gibbs, the owner operated a daycare out of her personal
residence. One day, she ordered her son, who worked for the daycare, to watch the
children outside while she spoke to a parent inside the home. A child left the yard
and crossed the street to a neighbor’s house. Gibbs, 947 A.2d at 234. This Court
did not find sufficient evidence of gross incompetence, negligence, or misconduct
5
Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), an
unreported opinion of this Court, while not binding, may be cited for its persuasive value.
6
DPW subsequently changed its name to DHS. Section 103 of the Human Services Code,
added by Section 2 of the Act of September 24, 2014, P.L. 2458, 62 P.S. § 103 (effective November
24, 2014).
7
Our Supreme Court defines gross negligence in other contexts as “conduct substantially
more than ordinary carelessness, inadvertence, laxity, or indifference; that is, behavior that is
flagrant, grossly deviating from the ordinary standard of care.” Albright v. Abington Mem’l Hosp.,
696 A.2d 1159, 1167 (Pa. 1997).
9
because DPW did not show that trusting the son to watch the children was grossly
incompetent, negligent, or misconduct. Id. at 237. The Court explained:
[DPW] argues that Gibbs left the child without supervision, but this is
not the case. Gibbs did not simply walk away from the children,
leaving them to fend for themselves. She left the children under the
supervision of an adult employee of the day care when she went in the
house to speak privately with one of the parents. . . . We hold that Gibbs
complied with the regulations by entrusting the children to the
supervision of an adult employee.
Id. (first emphasis in original); Cf. Winston v. Dep’t of Pub. Welfare, 675 A.2d 372,
377 (Pa. Cmwlth. 1996) (affirming DPW’s finding of substantial evidence of gross
incompetence, negligence, and misconduct because the daycare exceeded its
maximum capacity of children, and 13 infants and toddlers were found in the daycare
without any supervision).
Terry indisputably left the Child Care Home with four young children still in
diapers without any other employee present, did not inform anyone that she was
leaving, and was away for at least 30 minutes for a non-emergent reason. (FOF ¶¶
10-12, 14-16, 39-41, 45-46, 48-49.) Terry was the sole caretaker of these children
as she does not have any other employees. Liberty, slip op. at 17-18; Gibbs, 947
A.2d at 237. Unlike the case of Gibbs, Terry’s actions did leave the children “to
fend for themselves” because Terry did not leave the children “under the supervision
of an adult employee” when she left the Child Care Home. 947 A.2d at 237. Terry’s
argument that she did not leave the children unsupervised because her son and his
girlfriend were upstairs is not persuasive, as Terry did not inform anyone that she
would be leaving the Child Care Home. Even if the son and girlfriend were “in [the]
line of hearing[,]” as Terry contends, (Terry’s Br. at 27), the three-year-old child still
woke up from their nap and left the Child Care Home unnoticed. Further, neither
10
the son nor the girlfriend were employees of the Child Care Home. Gibbs, 947 A.2d
at 237. Terry’s actions are more akin to the case of Winston, where young children
were found in a daycare facility without any supervision at all. 675 A.2d at 377. We
conclude Terry’s actions of leaving four young children by themselves for 30-35
minutes to run a non-emergent errand when Terry is the owner and only employee
of the Child Care Home constitutes gross incompetence, negligence, and
misconduct. Therefore, DHS properly conducted an emergency removal of the
children.
B. License Revocation
Section 1026(b)(1) and (4) of the Human Services Code provides: “[DHS]
shall . . . revoke a license for any of the following reasons: . . . (1) [v]iolation of or
non-compliance with the provisions of this act or of regulations pursuant thereto; . .
. [or] (4) [g]ross incompetence, negligence[,] or misconduct in operating the
facility[.]” 62 P.S. § 1026(b)(1), (4). DHS’s regulations further provide DHS “may
deny, refuse to renew[,] or revoke a certificate of compliance for any of the
following: (1) [f]ailure to comply with this chapter[;] (2) [n]oncompliance with
[DHS]’s program licensure or approval regulations[;] . . . [or] (6) [g]ross
incompetence, negligence[,] or misconduct in operating the facility or agency.” 55
Pa. Code § 20.71(1)-(2), (6). It is on these bases that DHS revoked Terry’s license.
Our analysis above explains DHS properly found that by leaving the children
unsupervised, Terry acted with gross incompetence, negligence, and willful
misconduct. See Colonial Manor, 551 A.2d at 351; Liberty, slip op. at 17-18;
Winston, 675 A.2d at 377; Gibbs, 947 A.2d at 237. Therefore, DHS did not err in
revoking Terry’s license on this basis.
11
DHS also revoked Terry’s license because it found Terry violated DHS
regulations, including Section 3290.18, relating to general health and safety, and
Section 3290.113(a), relating to supervision. Section 3290.18 provides that
“[c]onditions at the facility may not pose a threat to the health or safety of the
children.” 55 Pa. Code §3290.18. Section 3290.113(a) provides that “[c]hildren on
the facility premises and on facility excursions off the premises shall be supervised
by a staff person at all times.” 55 Pa. Code § 3290.113(a) (emphasis added). DHS
regulations define “supervise” as “[being] present in the child care facility with the
children or with the facility person under supervision. Supervision is critical
oversight in which the supervisor can see, hear, direct and assess the activity of
the supervisee.” 55 Pa. Code § 3290.4 (emphasis added).
Clearly, Terry was not supervising the children when she left the Child Care
Home. Neither Terry, the son, nor the son’s girlfriend could “see, hear, direct and
assess the activity of the [children]” as Terry was not present, and the son and
girlfriend were upstairs. 55 Pa. Code § 3290.4. Again, although the son and
girlfriend were in the home, the three-year-old child was still able to wake up from
their nap and leave the home. Besides, neither the son nor the girlfriend were “staff
person[s]” as the regulations require. 55 Pa. Code § 3290.113(a). The lack of
supervision also “pose[d] a threat to the health or safety of the children” because in
the case of an emergency or accident, the children, who were still in diapers, would
be left without any help. 55 Pa. Code § 3290.18. We conclude DHS properly
revoked Terry’s license for violating DHS regulations relating to general health and
safety and supervision by leaving the children without supervision at the Child Care
Home for a non-emergent reason.
12
Not only did Terry leave the children without supervision, but DHS cited other
violations of DHS regulations including Section 3290.64(a), relating to toxics, and
Section 3290.74(a), relating to building surfaces. Section 3290.64(a) provides that
“[c]leaning materials and other toxic materials shall be stored in an original labeled
container or in a container that specifies the content . . . [and] kept in a locked area
or in an area inaccessible to children[.]” 55 Pa. Code § 3290.64(a). Section
3290.74(a) provides that “[f]loors, walls, ceilings and other surfaces, including the
facility’s outdoor play area, shall be kept clean, in good repair and free from visible
hazards.” 55 Pa. Code § 3290.74(a).
Contrary to Terry’s argument that Certification Representative did not find
any items that were toxic, sharp, pointed, or able to topple, (Terry’s Br. at 29),
Certification Representative took photos displaying multiple items on the porch and
sides of the Child Care Home, including two bottles of windshield washer fluid, a
container of cleaning wipes, a charcoal grill with a broken handle, a deep fryer with
oil inside, window air conditioning units, empty gasoline cans, and other items of
clutter. (FOF ¶ 54; Ex. C-2.) Terry did not dispute that these photos represented the
conditions of the Child Care Home the day she left the children. (FOF ¶ 70.) The
hazardous items on the porch constitute a violation of DHS regulations considering
the three-year-old child was found on the porch with access to these items.
Regarding the items on the side of the home, although there was no finding that the
children actually access this area, the ALJ did find that there is no blockage
preventing children from accessing them. (Id. ¶ 72). The items on the porch are
violations of DHS regulations relating to toxics and building surfaces and support
DHS’s decision to revoke Terry’s license.
13
IV. CONCLUSION
In sum, we find DHS properly conducted an emergency removal of the
children from the Child Care Home and revoked Terry’s license because Terry
demonstrated gross incompetence, negligence, and misconduct by indisputably
leaving the children without any supervision for a non-emergent reason. In addition,
DHS also properly found that Terry violated DHS regulations. Accordingly, we
affirm.8
__________________________________________
RENÉE COHN JUBELIRER, President Judge
8
Due to our disposition, we need not address Terry’s remaining arguments.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ardelia Terry, and Ardelia Terry :
Family Child Care Home, :
Petitioners :
:
v. : No. 568 C.D. 2020
:
Department of Human Services, :
Respondent :
ORDER
NOW, March 6, 2024, the Order of the Department of Human Services,
Bureau of Hearings and Appeals, entered in the above-captioned matter, is
AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge