Homa v. Carthage R–ix Sch. Dist., SD 30502.

• Decision Date: 04 May 2011
• Docket Number: No. SD 30502.,SD 30502.
• Parties: Lynda HOMA, Appellant,v.CARTHAGE R–IX SCHOOL DISTRICT, Respondent.
• Court: Missouri Court of Appeals

345 S.W.3d 266

161 Lab.Cas. P 61,138

270 Ed. Law Rep. 902

Lynda HOMA, Appellant,

v.CARTHAGE R–IX SCHOOL DISTRICT, Respondent.

No. SD 30502.

Missouri Court of Appeals, Southern District, Division Two.

May 4, 2011.Application for Transfer Denied

May 26, 2011.

Application for Transfer Denied

June 28, 2011.

Richard L. Schnake, Springfield, MO, for Appellant.Thomas A. Mickes, St. Louis, MO, for Respondent.WILLIAM W. FRANCIS, JR., Judge.

Lynda Homa (“Appellant”) appeals a judgment confirming the decision of the Carthage R–IX School District Board of Education (“Board”) terminating her employment with Carthage R–IX School District (“District”) based on immoral conduct. We affirm the judgment of the trial court.

Facts and Procedural History

The District is a Missouri public school district and a political subdivision of the State of Missouri. Appellant was employed as a tenured teacher in the District, pursuant to section 168.104,¹ serving as the director of the Parents as Teachers (“PAT”) program for twenty years. As director of the PAT program, one of Appellant's responsibilities was the supervision of PAT employees, including evaluating and disciplining the program's employees. ²

The PAT program is a free, voluntary parent education program offered by the District for all parents who have children from pre-birth through kindergarten “to nurture and help families.” The program is designed to help increase parent confidence, give parents an understanding of their child's developmental progress, and to provide children with early developmental screening. In Missouri, PAT is funded by the Missouri Department of Elementary and Secondary Education (“DESE”). DESE requires that each district maintain specific records of program activities. The DESE's Early Childhood Development Act (Senate Bill 658) (“ECDA”) Program Guidelines and Administrative Manual (2006) (“the ECDA Guidelines”), provides “parent educators must keep educational records of each personal visit and group meeting. Records must include ... the content of the visit [and] outline issues raised by the parents.... Only visits that have a completed personal visit record will be counted for reimbursement.” ECDA Guidelines, “Parent Education” at 21 (emphasis in original).

Parent educators make personal visits, conduct group meetings, offer resources, and provide developmental screening for children. The ECDA guidelines provide for personal visits by PAT educators and state the goal is for “the child to be present during the personal visit. There may be instances where this is not possible.... These special incidences must be approved by DESE.” ³ ECDA Guidelines, “Personal visits” at 14. While parent educators working with families through the PAT program are expected to build a relationship of trust and offer empathy for their client families, parent educators “are not expected to serve in the role of a counselor or social work [er]” It is important for the “parent educator to be clear about appropriate professional and personal boundaries” with their clients.⁴

In September 2007, PAT employee and parent educator, Laura Davenport (“Davenport”), asked Appellant if she could visit Encarnacion Bail (“Bail”), ⁵ a former participant in the District's PAT program who was incarcerated in the St. Clair County Jail (the “jail”) in Osceola, Missouri. Bail was a Guatemalan woman being held in jail pending her deportation due to her undocumented immigrant status. At that time, Bail had an eleven-month-old child, C.B., who was staying with family members in Carthage. Appellant authorized Davenport's visit to the jail, but informed Davenport she would only pay one-half of the mileage for her trip. Appellant did not notify her supervisor or call DESE to get approval before allowing Davenport to make a visit to the jail when she knew C.B. would not be present.

After Davenport returned from the jail, she informed Appellant she had a conversation with Bail about giving C.B. up for adoption. Appellant did not require Davenport to complete a personal visit record for her trip to the jail. Appellant authorized payment for 165 miles ⁶ and Davenport's full salary for that day. As no personal visit record was completed for this trip, the money expended for Davenport's visit to the jail could not be reimbursed to the District by DESE.

Davenport did complete a “Daily Visit Record” reflecting who she visited on September 19, 2007. This record reflected that on September 19, Davenport visited one other person and also stated, “I went to jail today, I did not pass go—I did not collect $200.”

In October 2008, Davenport was subpoenaed to testify in an adoption hearing for C.B. Although Davenport informed Appellant of this fact, Appellant did not inform the superintendent or anyone else.

On March 12, 2009, at a meeting with Dr. Blaine Henningsen (“Henningsen”), the District's Superintendent of Schools, Appellant informed Henningsen, for the first time, of a possible situation with Bail and C.B. On April 15, 2009, Henningsen requested another meeting with Davenport to further discuss the situation and requested she bring the case file with her. Although uninvited, Appellant appeared with the case file a few minutes after the meeting started and remained until its conclusion. Henningsen asked Davenport why she went to the jail and “her immediate response, without blinking was: ‘To get [Bail]—to get [Bail] to put [C.B.] up for adoption.’ ” Henningsen requested Appellant and Davenport separately “write down in chronological order everything that they remembered about the circumstances surrounding the situation.”

On April 20, 2009, Appellant and Davenport provided Henningsen with written statements; they admitted they had spoken to each other prior to writing out their respective statements. In their written statements, Davenport and Appellant recalled that the primary reason Davenport went to the jail was to take a birth certificate application form to Bail.

On April 21, 2009, Appellant was “placed on administrative leave, with pay, pending completion of an investigation into allegations of improper behavior by a [PAT] educator in an incident that occurred under [her] supervision ...” On June 16, 2009, Henningsen issued to Appellant a “Statement of Charges” (“Charges”), pursuant to section 168.116. The Charges asserted that Appellant engaged in immoral conduct relating to her participation in an adoption of an incarcerated woman's child.⁷

On August 13, 2009, a Board public hearing (“hearing”) was held, pursuant to section 168.118, to consider the charges preferred against Appellant. All objections made by counsel were noted for the record, and all proffered evidence was admitted by the Board and was to be given its appropriate weight upon deliberation. Appellant and District presented evidence and testimony. Appellant, Davenport, Henningsen, and Jennifer Velazco–Hernandez ⁸ testified.

Appellant's Testimony

Appellant testified that Davenport requested permission to go to the jail to visit Bail for the purpose of delivering a birth certificate application. Appellant did not suggest Davenport consider mailing the birth certificate application, and admitted that it “possibly” would have been prudent to try mailing it before sending a District employee there for half a day and spending District funds. Appellant admitted this circumstance was “very unusual,” and that she knew the jail was outside of the District's county and C.B. would not be at the jail when Davenport made the visit.

Appellant also admitted she knew the DESE/ECDA guidelines regarding PAT personal visits and that the goal was the child should be present, but did not notify her supervisor or call DESE to get approval before this visit. Appellant also testified that for a visit to be classified as a “personal visit,” the parent educator must take developmental materials with her on the visit. Appellant conceded it was her “mistake” to send Davenport without developmental information. As a result, Appellant testified that she did not consider Davenport's visit to be a “personal visit,” but merely “family support” and thus, no record regarding the visit was required to be completed and submitted to DESE. Appellant testified it was also a “mistake” not to have Davenport make a report of her visit. Appellant testified it was her decision to pay Davenport mileage for the trip to the jail. Appellant conceded at the hearing that about $181 of District funds were expended for Davenport's trip to the jail.

Appellant was not “shocked” that Davenport discussed adoption with Bail, and further testified it was okay with her if her parent educators talked to clients about giving their children up for adoption. Appellant testified she thought Davenport's daily record entry from her jail visit referencing she went to jail and did not collect $200 was “rather clever.”

Appellant acknowledged an undocumented immigrant in a foreign prison, facing deportation to Guatemala, and separated from her newly born baby, would perhaps be vulnerable. Appellant admitted she failed to report in the March 12, 2009 meeting, in the April 15, 2009 meeting, and in her written statement that after returning from the jail, Davenport said she discussed adoption with Bail.

Appellant acknowledged she is a mandatory reporter of suspected child abuse and neglect under Missouri law.

Henningsen's Testimony

Henningsen testified that after acquiring more information regarding the situation with the Bail family, he became concerned district PAT employees had been involved and were implicated in the adoption of a minor child.

Henningsen testified he asked Davenport, in their meeting on April 15, 2009, why she went to the jail to visit Bail on September 19, 2007, and Davenport's immediate response was: “To get [Bail]—to get [Bail] to put [C.B.] up for adoption.” Upon hearing this statement from Davenport, Henningsen testified Appellant did not correct Davenport, did not...