Bell v. Wisconsin Department of Children & Families

2015 WI App 47, 867 N.W.2d 430, 363 Wis. 2d 527, 2015 Wisc. App. LEXIS 345
CourtCourt of Appeals of Wisconsin
DecidedMay 12, 2015
DocketNo. 2014AP1823
StatusPublished

This text of 2015 WI App 47 (Bell v. Wisconsin Department of Children & Families) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell v. Wisconsin Department of Children & Families, 2015 WI App 47, 867 N.W.2d 430, 363 Wis. 2d 527, 2015 Wisc. App. LEXIS 345 (Wis. Ct. App. 2015).

Opinion

CANE, J.

¶ 1. Angela Bell appeals the order of the circuit court affirming the Wisconsin Department of Children and Families' decision to revoke her in-home child care certification and to prohibit her from re-applying for two years. Bell argues: (1) the term "moving in" used in Wis. Admin. Code § DCF 202.08(l)(c) (Jan. 2012) was too vague to comply with her due process rights; (2) we should not give the Department's decision "controlling weight" because its interpretation was unreasonable and contrary to the applicable regulation; (3) the record does not contain substantial evidence to support the Department's finding that she violated the regulations; and (4) the two-year ban on her from re-applying for child-care certification was too severe a penalty. We affirm.

BACKGROUND

f 2. In November 2010, the Department of Children and Families and Milwaukee Early Care Administration approved Bell's request for certification to do child care in her home. At that time, Bell signed a form [533]*533attesting that "all information on this checklist is true and accurate, to the best of my knowledge" and that she "understand [s] the above standards and that I must comply with these standards to maintain my certification." Under these standards, Bell agreed to "report as soon as possible, but no later than the county or tribal agency's next working day, to the agency any changes that affect the certified family child care operator's eligibility for certification . . . including . . . [individuals moving in or out of the household," see Wis. Admin. Code § DCF 202.08(l)(c)7., and to "[e]nsure that all information provided to the county or tribal agency is current and accurate," see § DCF 202.08(l)(e)3.

¶ 3. In August 2010, Bell's husband, Alaric Neely, was convicted of strangulation and suffocation in violation of Wis. Stat. § 940.235(1) (2009-10)1 after he was found guilty of trying to choke Bell to death. Bell's own son had to pull Neely off Bell to save her life. Neely spent sixty days in the House of Correction and then had to serve three years of probation. The court also ordered him to have no contact with Bell. As a result, Neely moved in with his daughter after he was released from the House of Correction. In November 2011, Neely suffered two strokes and spent two months in the hospital. Neely's probation agent, Rabekah Polasky, with approval from the court, agreed to modify the no-contact order to allow Bell to visit Neely in the hospital and to help with his care after he was discharged and back living at his daughter's house.

¶ 4. Bell ran her home child care business weekdays from 7:00 a.m. to 7:00 p.m. After business hours, Bell went to the daughter's house to help care for [534]*534Neely. In the Spring of 2012, Bell decided it would be easier to have Neely stay at her home and he began living there, although between 7:00 a.m. and 7:00 p.m. each weekday, Neely went to his daughter's house because those were the child care hours and Bell knew she needed the Department's permission before Neely could be at her house when children were present. On March 19, 2012, Neely told Polasky that he wanted to move back in with Bell, and on April 17, 2012, Neely told Polasky he had moved in. Neely gave Bell's address as his own on a reporting form for Polasky. During the weekday morning on May 1, 2012, Polasky came to Bell's house to make sure the home was appropriate, to verify that Neely had moved in, and to confirm he was in fact living there. Bell and the child-care children were on a field trip and therefore not home for Polasky's visit.

¶ 5. On April 23, 2012, Bell contacted the Department about Neely moving into her home. Bell knew from the initial application for certification she filled out, that the Department required notice of "all other persons living in your home 10 years of age or older." On April 30, 2012, Bell submitted the required Change of Circumstance Report form adding Neely as a resident in her home and advising that he would move in as soon as the Department approved. On June 22, 2012, the Department discovered Neely's felony conviction from a criminal background check and that he was still on probation. Polasky told the Department investigator Neely had moved into Bell's home on April 17, 2012, had given that address as his own, and Polasky verified at the May 1, 2012 home visit Neely was in fact living in Bell's home.

¶ 6. As a result, Maynou Thao, a child care certification specialist from the Department, sent Bell [535]*535notice by letter dated June 28, 2012, that her certification had been revoked because Bell "misrepresented and withheld information pertaining to Mr. Neely residing at your home and having him in the home poses a threat to the health and safety and welfare of your child care children." The notice advised Bell that she had violated two rules/regulations:

DCF 202.08(l)(e) Administration. A certified family child care operator shall do all of the following: ... 3. Ensure that all information provided to the county or tribal agency is current and accurate.
DCF 202.08(l)(c) [Reporting changes.] A certified family child care operator shall report as soon as possible, but no later than the county or tribal agency's next working day, to the agency any changes that affect the certified family child care operator's eligibility for certification under this chapter, including the following: ... 7. Individuals moving in or out of the household.

The notice told Bell her certification would be revoked and she could not re-apply for two years because she "demonstrated unsound judgment by allowing a convicted felon, Mr. Neely, to reside in your home thereby endangering the health and safety and welfare of your children in your care."

¶ 7. In early July 2012, Neely reported to Polasky he had left Bell's house and moved back in with his daughter. Bell appealed the Department's revocation decision and the case went to a hearing in April 2013. Polasky testified Neely told her in March he wanted to "move in" with Bell and told her he did "move in" to Bell's house on April 17, 2012. She said Neely specifically used the words "move in" and reported he had reconciled with Bell and the two were getting back together. Polasky also testified she did [536]*536two home visits on May 1, 2012 and June 26, 2012 to confirm the house was an appropriate living environment and to verify Neely was in fact living in the house. She does her home visits weekdays between 8:00 a.m. and 4:30 p.m. When Polasky arrived, Neely was home alone. He showed her his bedroom where she saw his clothes, deodorant, shoes, and other things for basic living needs. She also said that on April 17, 2012, Neely wrote down Bell's address as his own on the reporting form, and said he wanted to change his residence from his daughter's to Bell's. She further testified Neely told her the daycare did not want him at Bell's when the child-care children were there so he went to his daughter's house when the daycare was open.

¶ 8.

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Cite This Page — Counsel Stack

Bluebook (online)
2015 WI App 47, 867 N.W.2d 430, 363 Wis. 2d 527, 2015 Wisc. App. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-wisconsin-department-of-children-families-wisctapp-2015.