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OKLAHOMA MERIT PROTECTION COMMISSION STATE OF OKLAHOMA

)

HANA MOMIC, ) Appellant )

) vs. ) CASE NO. MPC 16-172 )

) OKLAHOMA DEPARTMENT OF HUMAN ) SERVICES, ) Appellee. ) FINAL ORDER

Hearing on this matter was held before the undersigned duly appointed

Administrative Law Judge on November 4, 2016 and December 16, 2016 at the Merit

Protection Commission offices in Oklahoma City, Oklahoma. Appellant, Hana Momic,

appeared in person and was represented by Daniel Gamino, Esq. Appellee,

Department of Human Services (hereinafter referred to as "DHS" or “Appellee”),

appeared by and through its counsel, John Douglas, Assistant General Counsel, and

table representative, David Clifton, Administrative Field Analyst / Regional Director,

RegionV.

At the conclusion of the hearing, the record remained open until January 6, 2017 to

allow parties to file their Position Statement and Proposed Statements of Fact.

Appellant, a permanent classified employee of Appellee, was discharged from

her position as a Child Welfare Specialist IV, Supervisor, following the death of an infant

whose case had been referred to DHS and was under investigation by a Child Welfare

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Specialist under Appellant’s supervision. Appellant was discharged for allegedly failing

to review client history, disregarding available relevant information concerning the

infant’s safety, failing to direct subordinate staff to follow DHS policies, and failing to

ensure that full resources were utilized to locate the infant who was in an unsafe setting,

all in violation of OAC OKDHS: 2-1-7(i)(1) Unsatisfactory Performance; OAC OKDHS:

2-1-7(i)(2) Misconduct; OAC OKDHS: 2-1-7(i)(4) Neglect of Duty; and OAC OKDHS: 2-

1-7(i)(2)(B) Willful Failure.

Whereupon, the sworn testimony of witnesses for both Appellee and Appellant

was presented, along with exhibits, which are incorporated herein and made a part

hereof. Accordingly, after careful consideration of all evidence, testimony, and exhibits,

the undersigned Administrative Law Judge issues the following findings of fact,

conclusions of law, and order.

FINDINGS OF FACT

Appellant was a Child Welfare Specialist IV at Tulsa County, 72G, District 14,

Region 5 Child Welfare Services, where she had been employed since July 2009. In

April 2015 Appellant was promoted to her current position as a supervisor, reporting

directly to District Director, Area 5, Kelli Heath. As a Child Welfare Specialist IV (CWS

IV), Appellant supervised 3-5 staff CWS’s in her unit who investigate and assess child

safety cases assigned to them, and develop protective plans or safety plans to ensure

the safety of children determined to be at-risk. Appellant was a CWS for two (2) years

before her promotion to supervisor. As a supervisor, Appellant monitors and provides

guidance and consultation to her CWS’s to ensure that the assessment and the plans

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developed are in accordance with policy. (Joint Exhibit 3) Supervisors are to approve

each safety plan within one day of implementation. (Joint Exhibit 3, page 2) On four of

her last five PMP’s on which she was rated, Appellant achieved Exceeds Standards on

both her Overall Accountability Rating and her Overall Performance Rating. (Joint

Exhibit 3)

Appellant and two of her CWS’s were on-call to receive referrals from the DHS

Hotline on December 18, 2015. (Appellant’s testimony) At 5:57am on December 19,

2015 LaDana Miller, CWS III and lead investigator in Appellant’s unit, was contacted

with Referral Number 1727014. (Joint Exhibit 19, page 7) The referral reported the

following information from the caller:

• A mom and her 5 month old infant son are homeless with no place to go;

• They were in a room at Motel 6 when another person in the room became

violent and created a disturbance;

• The police were called to the room;

• The violent person was banned from the room;

• Mom has track marks up and down her arm and appears to be a heavy

drug user;

• Mom lied to the police about calling someone to come get her and the

baby, and gave them the false impression that she was on the phone with

her father;

• The baby looks malnourished and looks to be the size of a one month old;

• The baby is not alert or oriented, and even though he is awake, has not

cried or made any noise for three hours;

• Police allowed mom to leave with the baby, even though they have no

place to go and she had already put the baby in harm’s way.

(Joint Exhibit 19)

The caller took Mom and the baby to a Tulsa hospital emergency room. (Joint

Exhibit 2, page 86)

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Upon receipt of this referral, Ms. Miller called Appellant at home. Appellant

immediately began researching the history of the case in the DHS KIDS database to

determine if DHS had had any previous history with the mother and/or five month old

baby. (Joint Exhibit 30, page 4) In fact, there had been four (4) previous referrals1

made to DHS concerning this mother and baby:

1. July 20, 2015 – A medical professional from the hospital at the time of the baby’s

birth called and reported that:

• Both the mom and the newborn tested positive for marijuana at the time of

the baby’s birth;

• Mom admitted to smoking marijuana every other day up until two weeks

prior to the birth as her doctor told her it was ok because it is “better than

meth”;

• Mom’s boyfriend has been angry and agitated with nurses, upset with the

baby crying, fell asleep while holding the baby and didn’t remember that

he had, left the room and returned very hyper;

• Mom has no family or support except for boyfriend and no bed for baby;

• Both mom and boyfriend had been incarcerated during the pregnancy, but

it was unknown how long;

• Caller was concerned about threat of harm to baby due to neglect.

This referral was designated as “screened out” or not accepted for investigation.

(Joint Exhibit 2, pages 333 – 339; Referral Number 1693095)

2. July 22, 2015 – Two days after the first referral call, a second referral call came

in from another individual, indicating that the mom and new born were

discharging from the hospital that day and reported that:

1 Although there were four prior referrals, only one was accepted for investigation. That investigated

referral is the only one Appellant saw, as she failed to conduct a thorough history search that would have uncovered

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• Mom admitted using heroin and alcohol until December, 2014, as she did

not know she was pregnant until four and a half months into the

pregnancy;

• Sometimes mom and boyfriend leave the hospital for several hours and

come back reeking of smoke. When he returns he either falls immediately

to sleep and cannot be awakened or is hyper and “bubbly”;

• Both mom and boyfriend often fall asleep in the bed and in the chair with

the baby even though they have been told not to do so;

• Mom is verbally agreeable with hospital staff, but does not necessarily

follow through;

• Boyfriend gets upset with the baby crying all the time, and constant crying

is a sign of withdrawal;

• Caller is concerned about drug use by mom and boyfriend and about

boyfriend’s response to baby crying.

This referral was accepted for investigation. In-home interviews were conducted,

as well as interviews with neighbors, acquaintances, and relatives, and the

referral was closed on September 18, 2015 with overall findings of

“Unsubstantiated”.2 Recommendations were made that mom participate with

Resonance Center for Women to help assess and treat her substance abuse,

that boyfriend participate in a drug assessment and treatment plan, and that both

she and boyfriend participate in and complete parent aide services. Although

mom agreed to these recommendations, she did not follow through with her

appointments. (Joint Exhibit 16, Referral Number 1693639)

3. August 3, 2015 – This referral was made by a friend or acquaintance of mom

who was concerned about the threat of harm to, and neglect of, the baby

because of the history of drug abuse and incarceration by the mom and

2 Referrals numbered 1693095, 1695987, and 1702009 were screened out as not accepted for

investigation, but their allegations were incorporated into and made a part of the investigation of this referral, numbered 1693639.

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boyfriend, as well as the history of drugs, incarceration, and domestic abuse by

the baby’s biological father.

This referral was designated as “screened out” or not accepted for investigation,

but was included with the July 22, 2015 referral that was open and under

investigation at that time.

(Joint Exhibit 17, Referral Number 1695987)

4. August 28, 2015 – This call came from a counselor/health care provider

concerned because mom had missed her appointment that day, and reported

that:

• Mom had limited prenatal care, has a history of drug abuse, and has no

supports;

• Mom was instructed to go to the Children and Family Services, promised to

go, but did not go;

• Mom brought baby into caller’s clinic, without an appointment, because of

diaper rash and was instructed to take the baby to the emergency room, but

mom did not do so;

• Caller last saw baby on August 7, 2015 and he looked good and had gained

appropriate weight;

• Mom failed to keep her last two appointments and missed her appointment

scheduled for that day.

This referral was screened out, not accepted for investigation, and was

incorporated with the July 22, 2015 referral, Referral Number 1693639, which

was then still open and under investigation.

(Joint Exhibit 18, Referral Number 1702009)

When LaDana Miller and Appellant received the referral on December 19, 2015,

this was the fifth referral received by DHS concerning baby. There was a DHS history of

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four (4) referrals of mom and 5-month old baby, with the one investigation closed as

Unsubstantiated three months prior to the December referral.3

After talking with the caller and with Appellant, Ms. Miller indicated that she called

the hospital to determine whether the mom and baby were still there. They were still at

the hospital. Ms. Miller went to the hospital emergency room where mom and baby

were and talked with the examining doctor who indicated that the baby appeared well-

nourished and happy and was doing fine, but needed appropriate clothes; however, the

mom appeared high and tested positive for amphetamines. (Joint Exhibit 2, page 87,

Testimony of LaDana Miller; Joint Exhibit 19, page 12)

Ms. Miller talked with the mom, who admitted using methamphetamines and

confirmed that she and baby were homeless and had been staying with other

methamphetamine users. (Joint Exhibit 19, page 12) While still at the hospital, Ms.

Miller talked with Appellant and it was determined to move forward with a Safety Plan

for mom and baby that would provide appropriate shelter and allow the two to remain

together.4

Based on Appellant’s research of past referrals, two names appeared to be

possibilities for appropriate safety monitors. Ms. Miller called and spoke with mom’s

great aunt who did not want to get involved with mom again. However, while Ms. Miller

was with mom, mom received a telephone call from a male friend concerned about her

and the baby. Upon inquiry from Ms. Miller, mom indicated that he (HT) might be a

3 There was a sixth referral received on December 20, 2015 that was screened out and not attached to

any of the previous referrals. No one, including Appellant and Ms. Miller, was aware of the connection between this sixth referral and the one received on December 19, 2015 that was open and under investigation. 4 Ms. Miller had observed mom with baby and noted that mom was very loving and attentive to baby,

baby was very responsive to mom, and the two had clearly bonded. (Joint Exhibit 2, page 88)

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good safety monitor, and HT agreed to accept the role. Following the required

background check, mom and HT signed the Safety Plan agreement, and Ms. Miller

followed the two, along with the baby, to HT’s apartment for inspection to determine if it

was an appropriate shelter for mom and the baby. (Joint Exhibit 22; Joint Exhibit 2,

pages 90-91) HT had already determined that his current bachelor apartment was not

appropriate for the baby and stopped in the leasing office to sign a new lease for

another apartment, putting both his name and mom’s name on the lease. (Joint Exhibit

2, page 91) Ms. Miller inspected the new apartment, which would be ready for HT,

mom and baby to move into by 3:00pm that afternoon, and determined that it was

adequate. (Joint Exhibit 2, page 91) Mom and HT agreed to attend a Child Safety

Meeting on Monday, December 21, 2015 at 4:00pm.

The Child Safety Meeting (CSM) is designed to provide a team approach to

discuss, devise, and put in place a plan that will ensure the safety of the child. On or

about 4:00pm on Monday, December 21, 2015 the CSM in Referral Number 1727014

commenced. Present were Justina Wallis, the CSM facilitator; Angela Barbee, CWS III

with Family Center Services (FCS); LaDana Miller; Appellant; mom and baby; and

Safety monitor, HT, who had been at work and arrived close to the end of the meeting.

Appellant was the ranking DHS staff at the CSM, and the individual with final approval

of the plan. (Testimony of Angela Barbee; Testimony of Kelli Heath)

The two safety issues to be addressed by the plan were identified as (1)

concerns for mom’s substance abuse, as recent as five days earlier, and (2) providing a

safe and stable home environment for baby. (Joint Exhibit 23) On Saturday, Ms. Miller

had suggested to mom that she set an appointment with Tulsa Women and Children

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Services to provide a place for mom and baby to stay, and to provide substance abuse

treatment for mom. As suggested, mom had called and set up an appointment with

TWCS for the following day, December 22. (Joint Exhibit 23)

The CSM resulted in the following plan:

1. DHS will not seek custody of baby at this time;

2. HT will remain the safety monitor and baby and mom will continue to live with HT

until mom meets with TWCS;

3. Mom will meet with TWCS at the appointed time on December 22, 2015;

4. Ms. Miller will follow up with mom within the next 60 days to ensure mom

followed up with TWCS;

5. Ms. Barbee will staff (discuss) with her supervisor by December 22, 2015 to

determine whether FCS will accept the case;

6. Appellant will staff (discuss) with District Director Kelly Heath by December 22,

2015 concerning the outcome of the CSM.

(Joint Exhibit 23)

All participants at the meeting signed the CSM Summary Report. (Joint Exhibit 23)

When the CSM ended, Ms. Miller left to work on another referral and all

participants left except mom and baby and Appellant. HT did not have a child seat with

him to transport baby back to his apartment. Mom said that the daughter of a neighbor

of HT who brought them to the CSM had her car seat and was coming back to pick

them up and take them back to HT’s apartment. Appellant examined the baby and

waited with mom. Mom was unable to contact the neighbor’s daughter, but said that the

daughter’s brother was coming to pick them up. Appellant continued to wait with mom

and baby until two men (one of whom mom said was the brother of the neighbor’s

daughter) drove up in a black Charger, with a car seat, and mom and baby left with

them. (Joint Exhibit 2, pages 175 - 178) This was the last time that anyone at DHS saw

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mom or the baby until January 16, 2016 when DHS responded to a call that baby was in

cardiac arrest at a Tulsa hospital. (Joint Exhibit 21; Testimony of Jenny Remy)

Appellant had obtained no information about the two men who drove away with

mom and baby, but was uneasy about the situation and immediately sent a text

message to Ms. Miller:

Drop what you’re doing. Get over to the safety plan monitor’s house now.

Mom is leaving with these two shady guys.

(Joint Exhibit 2, page 178)

Mom and baby never returned to HT’s apartment.

Prior to the start of the CSM mom had told Ms. Miller that she was not

comfortable staying with HT, that he was “creepy”. (Joint Exhibit 2, page 92) During the

CSM HT indicated he no longer wished to be the safety monitor and was not

comfortable with mom staying with him. After much persuasion from Ms. Miller, he

finally agreed to let mom and baby stay there for a day or two, until her assessment at

TWCS scheduled for the following day. Later that evening when Ms. Miller went to his

apartment to meet mom and baby, HT told her that he did not want mom there; that he

felt disrespected when he caught mom and a boyfriend together there early Saturday

morning. (Joint Exhibit 2, page 93-94)

The following day, December 22, 2015, Appellant staffed the case with District

Director Kelli Heath, relaying what had occurred at the CSM the previous day and the

fact that mom and baby had not returned to the safety monitor’s apartment and could

not be located. Appellant wanted to request a State pick-up order from the assistant

district attorney that would allow authorities to pick up baby and place him in DHS

custody, but Ms. Heath would not approve such a request. Ms. Heath indicated that

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more evidence was needed to justify a pick-up order; she wanted to wait and see if

mom showed up for her appointment with TWCS later that day; there was no evidence

of risk of harm to the child. Ms. Heath testified that at the time she also thought there

was insufficient evidence to justify a safety plan in the first place. (Testimony of Kelli

Heath)

On December 23, 2015 Appellant was on leave, but called in to staff with Ms.

Heath on this referral. Mom had failed to keep her appointment at TWCS on December

22, 2015; her and the baby’s whereabouts were still unknown; she could not be reached

and would not respond to telephone calls. Appellant again asked Ms. Heath to

authorize a request for pick up. Again Ms. Heath refused, requiring that all collateral

witnesses be interviewed and previous places where mom lived be visited. (Testimony

of Kelli Heath; Testimony of Appellant)

In response to Ms. Heath’s direction, Appellant sent the following email to Ms.

Miller at 12:30 the afternoon of December 23, 2015:

So just to clarify, if you do not find mom in a couple of weeks, we will

present an affidavit with what we have [to the ADA for a pick up Order].

Kelli and I kept going back and forth on it and decided on that. We will

check with her one more time before we do, though. We might get some

more collateral info in the meantime.\

Thanks!

(Joint Exhibit 28)

Appellant was on leave December 21, 22, 30, and 31, 2015, and out for the

holidays on December 24, 25, 2015 and January 1, 2016. (Joint Exhibit 29) Ms. Miller

was on-call December 18 – 24, 2015 and during that time picked up eight new referrals

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in addition to her regularly assigned referrals. (Joint Exhibit 36) December 26, 2015 Ms.

Miller worked a new priority case all day. (Testimony of Appellant) Ms. Miller attempted

to call mom periodically, but mom would not answer and her voice mail was full, so Ms.

Miller was unable to leave messages. (Joint Exhibit 2, page 97) On December 27,

2015 Ms. Miller began sending mom text messages asking if she and the baby were

safe and warm. After the second text message, mom responded that they were safe

and warm, and then texted back to ask if the text had been from Ms. Miller. Ms. Miller

responded in the affirmative and asked mom to please call her, that she needs to get

her set up with services. (Joint Exhibit 2, pages 97-98) Ms. Miller did not hear from

mom so she made a referral for mom to Resonance Women’s Center and sent mom a

text with the Resonance telephone number and a message to call and set up an

appointment there. Mom did call and set up an appointment at Resonance for January

15, 2016. (Id.)

In the meantime, after staffing with Appellant and receiving her approval, Ms.

Miller called the Tulsa County District Attorney’s Office to request a pick-up order for

baby. The ADA would not request such an order without an address where it could be

served on mom. (Id.) Ms. Miller contacted Resonance and asked them to let her know

when Appellant arrived so that she could meet her face to face and find out where she

lived. In her communications with mom, Ms. Miller never asked her where she was. On

January 15, Ms. Miller received an email from Resonance that mom failed to show up

for her appointment. Ms. Miller sent mom a text asking why she hadn’t gone to her

appointment and telling her she needed to reschedule. Mom responded that she has

been in the hospital with a pelvic inflammatory infection. Ms. Miller asked who has been

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caring for baby. Mom did not respond. (Id. at page 99) The following evening around

5:00pm Appellant called and told Ms. Miller that baby had died. (Id.)

Following the death of baby a request for investigation was sent to the DHS

Office of Client Advocacy to sort out the facts and report them, without making any

determinations or analysis or reaching any conclusions concerning culpability.

Employees were interviewed and their interviews recorded and transcribed. At the time

of death, mom and baby were living in a shed on property owned by the boyfriend’s

parents and located across the street from mom’s prior boyfriend’s house. (Joint Exhibit

19; Testimony of Luke Cooper, Investigator) They were all listed, along with addresses

in previous referrals.

Appellant was discharged effective June 15, 2016 for allegedly failing to review

client history, disregarding available relevant information concerning the baby’s safety,

failing to direct subordinate staff to follow DHS policies, and failing to ensure that full

resources were utilized to locate the baby who was in an unsafe setting, all in violation

of OAC OKDHS: 2-1-7(i)(1) Unsatisfactory Performance; OAC OKDHS: 2-1-7(i)(2)

Misconduct; OAC OKDHS: 2-1-7(i)(4) Neglect of Duty; and OAC OKDHS: 2-1-7(i)(2)(B)

Willful Failure. Appellant filed this appeal.

DISCUSSION

Appellee states that Appellant, as a supervisor, failed to ensure that “all care that

could be taken for six month old AH [baby] was, in fact, taken”; she failed to exercise

her supervisory authority and failed to use “the resources available to her necessary to

protect the life of AH.”

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Appellant states that she “acted in a professional and appropriate manner based

on the information in her possession,” and that Appellee failed to consider mitigating

factors that were present.

The issue here is whether Appellant, in her capacity as supervisor, acted

reasonably under the circumstances. There are two primary situations in which this

standard would be applied:

1. Whether Appellant, in her capacity as supervisor, acted reasonably with

regards to the safety plan, the safety plan meeting, and her interactions with

mom and baby when the safety plan meeting concluded.

2. Whether Appellant, in her capacity as supervisor, acted reasonably to locate

mom and baby once they disappeared.

I. Safety Meeting and Plan

When LaDana Miller made her initial contact with mom and baby at the hospital,

she first talked with the treating doctor. According to the doctor, the baby was a

perfectly fine, healthy, happy, normal baby, appropriate in weight and size for his age.

The mom, however, tested positive for amphetamines and was homeless. When she

met with mom and baby, Ms. Miller noted that mom and baby interacted appropriately,

seemed to have bonded, and that mom fed and cared for baby and talked to baby.

Mom also said she had been accessing services for the baby and had diapers, clothes,

and milk at the motel where she had been staying with a friend. (Joint Exhibit 2, pages

85-87) Based on mom and baby’s interaction in the hospital and the apparently healthy

condition of baby, it was not unreasonable for Ms. Miller and Appellant to think that with

the proper support and help, mom and baby should stay together.

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Appellant indicated that in her history search she had found one prior referral

involving mom and baby. In fact, there had been three other referrals that had been

“screened out” and would have been uncovered with the proper record search.

Appellant did not perform that search. These three referrals were not separately

investigated, but their allegations were incorporated in and investigated as part of the

one referral that Appellant found. Had Appellant performed the appropriate search for

screened out referrals, she would know that on four separate occasions, rather than

one, different individuals were concerned enough about the health and safety of baby to

call DHS. She might also have uncovered useful information that might have given her a

differed view of the situation.

Appellant performed the appropriate background investigations of HT before he

was approved as a safety monitor. However, neither she nor Ms. Miller questioned

whether HT was willing or able to perform all the responsibilities required of a safety

monitor. The ability to provide appropriate shelter is not the only requirement. Since

the safety monitor must be able to “monitor”, someone with a full-time job could not

properly do so. There were no provisions made for the monitoring, only for the shelter.

Appellant should have had Ms. Miller probe into this with HT before he was enlisted and

approved as the safety monitor.

The child safety meeting (CSM) is designed to cut down on child custody pick-

ups by bringing together a team of professionals, family members and support for the

mom and baby, along with the mom, and proposed monitor(s) to brainstorm and agree

upon a plan to meet the goals identified as required to ensure the safety of the baby.

(Testimony of Luke Cooper, Angela Barbee, Kelli Heath) Appellant and Ms. Miller were

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the only two people at the meeting with any real knowledge and understanding of this

referral and the history of mom and baby. Appellant was the senior staffer at the

meeting and was the one to ensure that all questions were asked and answered and

that a full and complete safety plan was in place, understood by all, and documented.

This did not happen. Shortcomings of the meeting and plan included:

• Did not sufficiently address the primary issue of safety of the baby;

• Questions asked by Ms. Barbee, the FCS staffer with no knowledge of the case,

were brushed aside and not fully answered;

• HT was not an appropriate safety monitor, as he was not present during the day

to supervise mom because of his employment;

• HT expressed emphatically that he did not want to continue as safety monitor,

and mom did not want him as safety monitor because he was “creepy”, but he

was persuaded to continue anyway;

• Duties and responsibilities of monitor and of mom were not fully discussed; no

documentation that any written information was provided;

• When asked about other possible monitors, mom had no suggestions, no support

systems, no last names, and no telephone numbers of anyone;

• There was no one identified to contact as a potential monitor; 5

• There was no contingency plan if mom did not get into Tulsa Women and

Children Services’ (TWCS) residential program the following day;

• There was no discussion concerning mom’s transportation to TWCS the next

day, in light of the fact that she had no vehicle, no money, and no known source

she could rely on to take her where she needed to go;

• Plan left a 60 day window for Ms. Miller to check with mom about her

appointment with TWCS scheduled for the following day;

• There was not sufficient brainstorming and discussion of alternative means of

providing safety to baby other than the chosen plan;

• Although Appellant testified that there was an intention to modify the plan with

another monitor, there is no documentation of an intent to modify the plan.

5 Ms. Nowicki, the supervisor whose team had investigated the prior referral(s) a few months earlier,

testified that she talked with Appellant about the case when she learned that Appellant’s team was investigating a referral on the same mom and baby. She indicated that she had offered a foster care respite worker as a possible safety monitor for mom and baby, but Appellant declined the offer.

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The intended plan as written and implemented was incomplete and insufficient to meet

the goals and needs of maintaining baby’s safety, and Appellant provided no guidance

or instruction or commentary during the CSM to ensure that the safety goals would be

met.

Once the meeting concluded, Appellant did not insist upon mom riding home with

HT. She had a baby seat they could have borrowed. However, mom had advised her

that the female neighbor who had brought her to the CSM and had her baby seat was

returning to take baby and mom back to HT’s. Once Appellant learned that the

neighbor was not coming, she might have insisted that she take mom and baby back to

HT’s. Or once the two “shady” men showed up, she might have insisted on following

them to HT’s, gotten names of the men and gotten a license plate number. Certainly

had Appellant known at that time that mom and baby would disappear and baby would

end up dead, she would have acted differently. But, hindsight is always 20/20. Could

she have predicted the outcome based on her limited interaction with mom and from

reading all five referrals? Probably not. Two medical doctors who examined the baby

found him to be normal and healthy, with no signs of abuse or trauma. Yet, mom’s

history of drug use, no relatives or support systems, homeless with no financial means,

and “shady” associates would indicate that the baby is not in a safe environment.

II. Actions Taken Once Mom and Baby Disappeared

Given the above described situation, a reasonable person would have some

concern for the baby’s safety once mom and baby failed to return to HT’s apartment. In

fact, as soon as mom and baby left the meeting with the two men, Appellant had

concerns. She immediately sent a text message to Ms. Miller telling her to drop

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everything she was doing and go at once to HT’s apartment to meet mom and baby.

The sequence of events from December 19, 2015 to January 16, 2016 are as follows:

December 18-24 Miller on-call; assigned and worked eight new referrals in

addition to her regular load

December 19 Miller receives subject referral; goes to hospital; interviews

caller, doctor, mom; enlists HT as safety monitor and puts

safety plan in place; inspects HT’s living arrangement; all

parties agree to CSM on 12/21 at 4:00pm

December 21-22 Appellant on leave, but attends CSM

December 21 CSM is held; Mom and baby leave CSM in a car with 2

“shady” men and fail to return to HT’s apartment

December 22 Appellant staffs with District Director Heath (DD) and asks to

seek a pick-up order from ADA. DD denies request for pick-

up order and tells her to wait and see if mom keeps her

appointment with TWCS. (DD testified that she thought there

was insufficient evidence to justify a safety plan at the time it

was instituted.)

Mom fails to keep her appointment with TWCS

December 23 Appellant staffs with DD and advises that mom missed

TWCS appointment; makes second request to seek a pick-

up order. DD denies second request for pick-up order; needs

more evidence6. Appellant sends email to Miller that if mom

not located in a couple of weeks, we’ll seek a pick-up order

December 24-25 Appellant is on holiday leave

December 25 Miller is on holiday leave

December 26 Miller works all day on another priority case

December 22-26 Miller makes periodic calls to mom’s cell phone, but mom

does not pick up and voice mail is full

December 27 Miller begins texting mom and mom responds that she and

baby are both safe and warm; no location of mom and baby

requested or given

January 7 At Appellant’s instruction Miller requests a pick-up order from

the ADA; ADA declines to seek a pick-up order because

there is no known address on mom and baby

6 DD Heath testified that she told Appellant that more evidence was needed, but said she never told her

what evidence was needed to provide proof of threat of harm

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January 11 Miller and mom text and mom has scheduled an

appointment with Resonance Substance Abuse Center for

January 15; Appellant advises DD

January 15 Mom misses appointment at Resonance; Miller texts mom

about missed appointment; mom responds that she is in the

hospital with pelvic inflammatory infection; Miller asks who is

caring for baby; no response from mom

January 16 Baby arrives at hospital at 4:19pm in cardiac arrest, with

pneumothorax (collapsed lung); he is pronounced dead at

5:02pm

At no time did Ms. Miller review prior referrals to obtain collateral names and

addresses of friends, acquaintances, or relatives of mom or past addresses where mom

and baby have lived or names and addresses of boyfriends, all of which were available

in prior referrals. At the time of baby’s death mom and baby were living in a shed with

no water or gas, on the property of mom’s boyfriend’s parents. This home is identified

in previous referrals and is across the street from mom’s old boyfriend, who is believed

to be the father of baby, and is also identified in previous referrals. Although there is no

documentation in the record, Appellant testified that she instructed Ms. Miller to visit

mom’s old address and to search collaterals in an attempt to locate mom and baby. Ms.

Miller did not do this. In fact, Ms. Miller did not take any physical steps to locate mom

and baby; all attempts were limited to phone calls and texts to mom’s cell phone. In

none of these phone calls or texts did Ms. Miller ever ask mom where she and the baby

were staying. Ms. Miller’s explanation is that she did not want to shut down mom from

communicating with her by asking her a question she would not want to answer. Her

hope was that she would meet mom at her appointment at Resonance on January 15.

However, her past experience with mom keeping appointments would provide little hope

that mom would keep her January 15, 2015 appointment. Her behavior remained

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consistent. By the same token, there is no documentation that Appellant required

anything more of Ms. Miller, nor that she took any disciplinary action in response to Ms.

Miller’s alleged failure and refusal to follow Appellant’s direction to “hunt down”

collaterals to find mom and baby.

In answer to the threshold questions concerning Appellant’s reasonableness, this

administrative law judge finds that (1) Appellant did not act as a reasonable supervisor

in her actions and inactions during the CSM and in approving a Child Safety Plan, both

of which were inadequate to meet the goal of protecting baby in this case; and (2)

Appellant did not act as a reasonable supervisor in her actions and inactions in

instructing, monitoring, documenting, and ensuring that Ms. Miller take steps necessary

to locate mom and baby and to ensure that baby is in a safe and protective

environment. Appellee has proven by a preponderance of the evidence presented in

this case that Appellant violated OAC OKDHS: 2-1-7(i)(1) Unsatisfactory Performance;

OAC OKDHS: 2-1-7(i)(2) Misconduct; OAC OKDHS: 2-1-7(i)(4) Neglect of Duty; and

OAC OKDHS: 2-1-7(i)(2)(B) Willful Failure when she failed to take steps necessary to

ensure the safety of baby in this case.

This is a tragic and disturbing case, fraught with errors, mis-readings, mis-calls,

and differences of opinion, beginning with the first referral that was accidentally

screened out. Two doctors who treated mom and examined the baby found the baby to

be healthy, happy, and normal, even though both doctors were aware of mom’s drug

use. The second doctor said the baby was not neglected and saw no need for referral of

the baby, in contrast to the referral caller, who saw the baby as grossly underweight and

abnormally lethargic.

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Even the professionals at DHS had differences of opinion regarding the situation.

In the first investigation, investigating supervisor Nowicki and later, CSW Remy both

thought that a child safety plan should have been put in place during that first

investigation. Ms. Nowicki had requested both a pick up order and a safety plan for

baby at that time, but DD Kelli Heath had denied both. In the second investigation, the

instant referral, Investigator Cooper, Appellant and Ms. Miller all though that a pick-up

order should have been requested and obtained early in the investigation. Twice,

however DD Kelli Heath denied Appellant’s request to seek such an order through the

ADA. When Ms. Miller did finally present an affidavit for a pick-up order to the ADA, the

ADA refused to accept it because it lacked an address or location for mom and baby.

Indeed, as a result of the handling or mishandling of this case, through the six (6)

referrals filed prior to the death of 6-month old baby, discipline was handed out to six

employees, including Appellant. Discipline ranged from a letter of warning for the

District Director to discharge of Appellant. Both Appellant and Ms. Miller were allowed

to resign in lieu of discharge. Appellant chose to appeal.

This administrative law judge finds that just cause exists for discipline of

Appellant, but that the discipline imposed in this case was not just under the

circumstances. At the time that this referral was received, Appellant’s team was under-

staffed and overrun with referrals. Her normal team of five had been reduced to two7

when DD Heath assigned the team to be on-call to receive and work referrals that came

in outside of normal business hours. When Appellant requested that her team be

coupled with another team during this on-call week -- something that was not

7 Ms. Miller was the only experienced CSW of the two. The other CSW was very new and still in training.

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uncommon -- DD Heath refused her request. DD Heath acknowledged in her testimony

that Appellant had made this request, that Ms. Miller was the only experienced member

of the team at that time, that during this time there was very heavy call volume, and that

she denied Appellant’s request. She gave no reason for her denial other than to say to

Appellant, “Tell LaDana to suck it up,” Appellant testified.

Additionally, with the flood of referrals that Ms. Miller had to work, Appellant may

have been responding to an apparent lack of concern from DD Heath about the safety

threat posed to baby in this case. Although Appellant and Ms. Miller believed that the

threat to baby’s safety warranted a pick-up order, DD Heath did not think there was

enough evidence of risk of harm to justify a safety plan, let alone a pick-up order, and

twice denied Appellant’s request, even after mom had violated the safety plan and

disappeared with baby. DD Heath was the one person who had been involved in both

investigations, and in both investigations she saw no threat serious enough to warrant a

pick-up order or even a safety plan, contrary to the beliefs and recommendations of the

investigators and supervisors handling each of those referrals.

The preponderance of evidence does not support a finding of just cause for

discharge in this case. Regional Director Clifton identified several mitigating

circumstances he considered before reaching his decision to discharge Appellant.

However, not on his list if mitigating circumstances: (1) mom and baby had clearly

bonded; mom cared for baby and utilized available services to provide him with milk,

diapers, and other necessities which she could not afford; (2) mom took the initiative to

call and set up appointments for recommended services, appeared cooperative until her

disappearance, and there is no documentation that DHS ever raised the question with

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mom of why -- with no transportation, no money, and no responsible friends or support

systems -- she continually missed her appointments; (3) with a non-supportive

supervisor, Appellant may not have been the most culpable among all the actors; (4)

Appellant had been an exemplary employee prior to this tragic incident, with no

discipline ever, and four of the last five PMP’s rated exceeds standards in both

accountabilities and performance.

CONCLUSIONS OF LAW

1. Any findings of fact that are properly conclusions of law are so

incorporated herein as conclusions of law.

2. Merit Rule 455:10-11-14 states that a permanent classified employee may

be discharged, suspended without pay, or demoted for misconduct, inefficiency, inability

to perform the duties of her position, willful violation of Merit Rules, and any other just

cause.

3. Merit Rule 455:10-9-2 states that the Appellee bears the burden of proof in

an adverse action and must prove by a preponderance of the evidence that just cause

exists for the action taken.

4. OKDHS:2-1-7(i)(1) Unsatisfactory performance states that an employee

may be disciplined when performance fails to meet established standards and criteria

for the position to which the employee is assigned, and further states that in most

instances unsatisfactory performance is correctable and efforts to identify and correct

the performance problems normally precede any disciplinary action.

5. OKDHS:2-1-7(i)(2) Misconduct states that an employee may be

disciplined for failure to comply with statute, policy, practice, directives, standards or

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procedure directly governing performance and conduct, and states that supervisory

personnel are responsible for ensuring that employees are informed of and have

available for review all applicable policy.

6. OKDHS:2-1-7(i)(2)(B) Willful failure is a form of misconduct for which an

employee may be disciplined, and includes failure to follow established DHS policy and

failure to complete required forms and reports.

7. OKDHS:2-1-7(i)(4) Neglect of Duty states that an employee may be

disciplined for inexcusable failure to perform an assigned duty, and inexcusable

inattention to assigned duties.

8. OAC 340:75-3-200 4.(1) General Protocols for Child Protective

Services (CPS) states that when there is a prior CW history involving the adults and

children in the current referral, the history is reviewed prior to initiating investigation

unless an urgent response is required and there is no time to review prior to initiating.

9. OAC 340:75-3-200 5 (3)(B) requires that in Priority 1 investigations at

least one diligent face-to-face attempt to contact the child victim is required every

calendar day until the victim is located and safety is established.

10. OAC 340:75-3-200 16. states that assessment and investigation protocol

is followed unless good cause exists for modification, and modification is not allowed

when there is a prior CW history involving the adults and children in the current referral

within the past 12 months.

11. Appellee, Department of Human Services, has met its burden to prove, by

a preponderance of the evidence, that Appellant, Hana Momic, has violated DHS: 2-1-

7(i)(1) Unsatisfactory performance, DHS: 2-1-7(i)(4) Neglect of duty, OKDHS:2-1-

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7(i)(2) Misconduct, and OKDHS:2-1-7(i)(2)(B) Willful failure. Appellee has failed to

meet its burden to prove by a preponderance of the evidence that discharge in this case

and under these circumstances is just discipline.

ORDER

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED by the

undersigned Administrative Law Judge that the petition of Appellant is hereby

GRANTED IN PART. Appellant’s discipline is reduced from discharge to demotion to

her previous grade of Child Welfare Specialist III. Appellant is reinstated to the grade

and pay of Child Welfare Specialist III with backpay and benefits, less any other income

received since her discharge.

DATED this 17th day of January, 2017.

_________________________________

Annita M. Bridges, OBA # 1119 Administrative Law Judge OKLAHOMA MERIT PROTECTION COMMISSION 3545 N.W. 58th Street, Suite 360 Oklahoma City, Oklahoma 73112 (405) 525-9144