Dieter v. STATE, DEPT. OF SOCIAL SERVICES

422 N.W.2d 560, 228 Neb. 368
CourtNebraska Supreme Court
DecidedApril 29, 1988
Docket87-130
StatusPublished

This text of 422 N.W.2d 560 (Dieter v. STATE, DEPT. OF SOCIAL SERVICES) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dieter v. STATE, DEPT. OF SOCIAL SERVICES, 422 N.W.2d 560, 228 Neb. 368 (Neb. 1988).

Opinion

422 N.W.2d 560 (1988)
228 Neb. 368

Judy DIETER, Appellant,
v.
STATE of Nebraska, DEPARTMENT OF SOCIAL SERVICES, et al., Appellees.

No. 87-130.

Supreme Court of Nebraska.

April 29, 1988.

*561 *562 R.D. Stafford of Brogan & Stafford, P.C., Norfolk, for appellant.

Robert M. Spire, Atty. Gen., and Royce N. Harper, Lincoln, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

GRANT, Justice.

This is an appeal from the district court for Madison County, affirming an order of the director of the Department of Social Services (DSS). The order revoked the day-care center licenses of the appellant, Judy Dieter. On appeal, appellant contends that the district court erred in finding that the director reached her order revoking appellant's licenses upon "lawful procedure," in finding that the director's order and the procedure used to reach the order did not violate both the state and federal Constitutions, and in rendering a judgment not sustained by competent, material, or substantial evidence. We affirm.

The record shows the following. Appellant was licensed to operate two day-care facilities in Norfolk, Nebraska, the Playhouse Day Care Center (hereinafter Playhouse I), licensed in 1980, and the Playhouse Too Preschool and Day Care Center (hereinafter Playhouse II), licensed in 1983. DSS had periodically renewed appellant's licenses. Playhouse I is licensed to provide care for 45 children, and Playhouse II is licensed to provide care for 77 children.

Early in February 1985, DSS received complaints about the disciplinary practices at Playhouse II facilities and derogatory remarks made to the children by appellant. On February 28, a licensing specialist for DSS investigated the facilities in order to determine whether appellant was in compliance with the licensing regulations. During the investigation, appellant admitted that she "may have swatted" the children. Appellant then signed a written statement saying that she would not "swat" children from that day on. After appellant signed the statement, the investigator determined that appellant generally was in compliance with the department's day-care regulations. The investigator determined that the allegation involving derogatory remarks made to the children was unsubstantiated.

On January 24, 1986, Officer Robert Lankford of the Norfolk Police Department commenced an investigation after the police department had received complaints of possible mistreatment of children at the day-care facilities. On February 24, 1986, Officer Lankford interviewed appellant at Playhouse I. At that time, appellant informed Lankford that she spanked children when she had parental permission. Lankford then asked appellant whether she had ever force-fed a child. At the hearing, Lankford testified as to her response:

Mr. Lankford: Her response verbally was, "do you mean like this".
*563 [Appellees' attorney]: And what did she do?
Mr. Lankford: At the time she made that statement she placed a hand to her face, thumb on one side and fingers on the other and appeared to open her jaw by squeezing them together, the two cheeks. At that point I stated yes, like that, and she replied no, never.

DSS was informed of the investigation in January 1986 and received a written report of the investigation in mid-February. No criminal charges were filed by the police as the result of the investigation. After the initial report was sent, however, Officer Lankford continued his investigation and apprised DSS of "[p]eriodic updatings." DSS received a second written report from Lankford sometime after March 5, 1986. This report consisted of various interviews conducted subsequent to the original report.

In a letter dated March 4, 1986, and hand-delivered to appellant on March 6, the licensing supervisor for DSS informed appellant that her licenses to operate her day-care facilities had been revoked. Attached to the letter was a copy of the "Emergency Declaration and Order" signed by the director. The letter informed appellant that she was entitled to an appeal of the director's decision. The declaration and order stated that the department was acting pursuant to Neb.Rev.Stat. § 71-1915(3) (Reissue 1986), and informed appellant that

a recent investigation has determined that there is substantial evidence that excessive physical punishment, as a means of discipline, is being used in one or both of the Day Care Centers in violation of licensing standards of the Department of Social Services that appears [sic] at 474 Nebraska Administrative Code, Part 6-002.08G3. There also appears to be substantial evidence of behavior which may be injurious to or which may endanger the health or morals of the children in care, as stated in Part 6-002.08D of the Nebraska Administrative Code.

Section 71-1915(3) sets out the procedure to be followed by the director in the event of an emergency, and provides as follows:

Whenever the director finds that an emergency exists requiring immediate action to protect the physical well-being and safety of a child in an early childhood program, the director may, without notice or hearing, issue an order declaring the existence of such an emergency and requiring that such action be taken as the director deems necessary to meet the emergency. Notwithstanding the provisions of subsection (1) of this section, such order shall be effective immediately. Any person to whom the order is directed shall comply immediately, except that upon application to the director, the person shall be afforded a hearing as soon as possible and not later than ten days after his or her application for the hearing. On the basis of such hearing the director shall continue to enforce his or her order or revoke or modify it.

On March 17, DSS sent a supplemental notice to appellant. The letter informed appellant that the investigation conducted by Officer Lankford revealed that appellant had been observed spanking, slapping, handling the children roughly, biting, feeding the children by force, pulling the hair of the children left in her care, and using profane language. The letter stated that appellant's conduct was in violation of three specific regulations which had been issued by DSS pursuant to Neb.Rev.Stat. §§ 71-1908 through 71-1918 (Reissue 1986) and which are codified at Neb.Admin.Code tit. 474, ch. 6, § 002 (1986).

On March 12, 1986, appellant requested a hearing on the director's order. The hearing was scheduled and begun by DSS on Monday, March 24, a date which satisfied the 10-day requirement of § 71-1915(3). The hearing continued on March 26 and 28, and April 10, 1986.

At the hearing, several of appellant's former employees testified as to appellant's conduct toward the children in appellant's facilities.

*564 Doris Kuehler, who was employed as a cook at Playhouse II from September until December 1984, testified that appellant force-fed the children whenever they did not finish eating their meals.

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422 N.W.2d 560, 228 Neb. 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dieter-v-state-dept-of-social-services-neb-1988.