Terkosky v. Ind. Dep't of Educ.

• Decision Date: 24 October 2013
• Docket Number: No. 49A02–1212–PL–1000.,49A02–1212–PL–1000.
• Citation: 996 N.E.2d 832
• Parties: Patricia TERKOSKY, Appellant, v. INDIANA DEPARTMENT OF EDUCATION, Appellee.
• Court: Indiana Appellate Court

996 N.E.2d 832

Patricia TERKOSKY, Appellant,
v.
INDIANA DEPARTMENT OF EDUCATION, Appellee.

No. 49A02–1212–PL–1000.

Court of Appeals of Indiana.

Oct. 24, 2013.

[996 N.E.2d 835]

Eric M. Hylton, Laura S. Reed, Riley Bennett & Egloff, LLP, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION
BROWN, Judge.

Patricia Terkosky appeals from the trial court's order affirming the decision of the Indiana Department of Education (the “IDOE”) to suspend her teaching license for two years. She raises one issue which we revise and restate as whether the court erred in denying her petition for judicial review. We affirm.¹

FACTS AND PROCEDURAL HISTORY

Terkosky was a licensed teacher, holding licenses in Indiana to teach students who were mildly mentally handicapped and/or learning disabled and students with severe disabilities. On March 10, 2010, Dr. Tony Bennett, the State Superintendent of Public Instruction (the “Superintendent”), issued a Recommendation for Licensure Action (the “Recommendation”) against Terkosky in which he recommended that her license be revoked based upon immorality and misconduct in office. The Recommendation consisted of a form which stated: “Pursuant to IC 20–28–5–7,

[996 N.E.2d 836]

I recommend and request that the Department take the following action on the above-referenced licenses,” and below listed four choices which could be selected by checking the appropriate box including to suspend the license for one year, to suspend the license for two years, to revoke the license, or to take no action at this time. Appellant's Appendix at 21. The form next noted that such action was being requested “[f]or the following reason(s)” and listed choices to again select by checking appropriate boxes corresponding with Ind.Code § 20–28–5–7, including immorality, misconduct in office, incompetency, willful neglect of duty, or that the “[a]lleged action does not satisfy the requirements of IC 20–28–5–7.” Id. On March 19, 2010, the Superintendent by counsel filed a complaint against Terkosky, which was amended on March 24, 2010 to correct the caption, seeking revocation of her teaching licenses pursuant to Ind.Code § 20–28–5–7 based upon incidents in her classroom which occurred on March 3, 2010 and in September of 2008.

On June 15, 2010, a hearing before an Administrative Law Judge (the “ALJ”) with the IDOE was held, and witnesses were sworn and testimony was heard. On September 13, 2010, the ALJ issued its order (the “ALJ's Order”), and, rather than ordering that Terkosky's teaching licenses be revoked, the ALJ ordered her teaching licenses be suspended for a period of two years. Specifically, after reciting the procedural history consistent with the foregoing, the ALJ's Order rendered the following Findings of Fact:

1. The [IDOE] has jurisdiction in this matter.

2. [Terkosky] holds the following Indiana Teaching Licenses # 514284, 408770, and 404119, valid for the areas of learning disabled, mildly mentally handicapped, moderately mentally handicapped and multiply handicapped. She was employed for 23 years by the Greene–Sullivan Special Education Cooperative that provides special education services to six (6) school districts. [Terkosky] was at the time of the alleged incidents assigned to Worthington Elementary School in the White River Valley School District. Following an administrative hearing, [her] teaching contract was terminated on April 13, 2010.

3. [Judy] Thrasher, a physical therapy (PT) assistant in [Terkosky's] classroom, entered the room on a day in September 2008 and observed a student under the direction of [Terkosky] standing facing the chalkboard behind an easel or chart paper stand. Thrasher then sat at a computer with her back to the student and [Terkosky]. Thrasher heard [Terkosky] direct the student to face the chalkboard and then heard the sound of a strike on the easel/chart paper stand. She turned and saw [Terkosky] holding a yardstick. Thrasher heard this sound three times during the 15 minutes she was in the classroom; she observed [Terkosky] strike the easel/chart paper stand with the yardstick once. Before leaving the classroom Thrasher observed [Terkosky] loosely drape a piece of opaque plastic over the top of the stand that covered the student's head to his shoulders. The student did not appear to be in distress, nor did Thrasher observe that other students in the room appeared distressed by the discipline. After leaving the classroom Thrasher drove to the office of [Parti] Weinheimer, the special education

[996 N.E.2d 837]

coordinator, and reported what she had observed. (Thrasher testimony)

4. Upon receiving Thrasher's report Weinheimer drove 15 minutes to Worthington Elementary to discuss the report with [Terkosky]. Weinheimer observed an easel/chart paper stand with plastic over the top in the classroom; no student was standing behind the easel or facing the chalkboard. Weinheimer advised [Terkosky] that if she had disciplined the student as reported, she should not do so again in the future. There was no allegation that the student was caused to stand at the board for an excessive length of time or that the student suffered injury. Weinheimer relayed the report to her superior and made no further investigation. She did not call Child Protective Services (CPS) or the police. (Weinheimer testimony)

5. [Tina] Baker, a paraprofessional assigned to [Terkosky's] classroom in September 2008, has no recollection of seeing, or being otherwise aware of, a student being disciplined as reported by Thrasher. (Baker testimony)

6. On March 3, 2010, Baker and Smith, another paraprofessional assigned to [Terkosky's] classroom, were assisting other students when they heard the sound of a “smack” and heard M.N. utter a startled cry. Neither Baker nor Smith saw what made the sound or caused M.N[.] to cry. After hearing the “smack” sound, Baker turned to observe M.N. with her hands up to her face, crying. Smith, who was in a curtained changing area with a student, observed M.N[.] crying, hands to her face, when she exited the changing area several minutes later. Baker observed [Terkosky's] demeanor as “a little frustrated.” When M.N[.] was crying, she and [Terkosky] were both near the chalkboard. M.N. cried for a couple of minutes and then was back to her “normal self.” (Baker testimony; Smith testimony)

7. A little later the same day, Smith observed an interaction between [Terkosky] and M.N. Baker was also in the room but was assisting other students. The students were practicing the skill of putting on and fastening their coats. After M.N. put her coat on and zipped it a couple of times she tired of the activity and refused to continue. [Terkosky] directed M.N. repeatedly to continue the activity but M.N. refused, saying, “You're mean.” M.N[.] began to wander away. [Terkosky] approached M.N., took hold of one of her arms firmly and led M.N. over to a chair where she pulled M.N. into the seat “a little hard.” M.N. resisted and tried to pull away; [Terkosky] held her arm. The student was defiant and again refused to put on her coat; both [Terkosky's] and M.N[.]'s voices were raised as noted by Smith and Baker. Smith testified that a little later she observed redness on one of M.N[.]'s arms. Smith's sworn testimony as to which arm [Terkosky] gripped and where Smith later observed redness is inconsistent. At the contract termination hearing Smith testified [Terkosky] gripped M.N[.]'s right arm and Smith saw subsequent redness there. In this matter she testified that her prior testimony was inaccurate and [Terkosky]

[996 N.E.2d 838]

actually gripped and left a red mark on M.N[.]'s left arm. (Baker testimony; Smith testimony)

8. The following day Smith noticed a bruise on the inside of M.N[.]'s left arm and took her to [Pam] Kirk, the school nurse. Kirk recorded the location and size of the bruise on a standard incident form and she contacted M.N[.]'s parents and principal [Kevin] Keller. Kirk did not question M.N. about the cause of the bruise. The incident form notes the bruise is of unknown origin. Smith cannot state conclusively the source of the bruise. (Smith testimony; Kirk testimony; State's Exhibit G)

9. M.F. was a student in [Terkosky's] classroom on March 3, 2010. M.F. is nine years old. Among M.F[.]'s disabilities, M.F. is diagnosed with Pica, a disorder characterized by mouth tactile needs resulting in the ingesting of inedible objects. M.F. is verbal and can communicate ( [Linda] Fish testimony; [Judy] Flowers testimony; [Nancy] Patterson testimony)

10. Near the end of the day on Mar. 3[,] Patterson, a teacher's assistant in [Terkosky's] classroom, heard [Terkosky] ask M.F. if she had [Terkosky's] eraser. Patterson was behind M.F. about 2 feet away. Patterson observed that M.F. was holding a large pink eraser. In response to [Terkosky's] question, M.F. replied, “You're mean.” Patterson saw [Terkosky] approach M.F. and “pop” her on the lips with the index, third and fourth fingers of one hand. During testimony Patterson demonstrated the “pop” to opposing counsel and the ALJ showing firm, but not forceful, contact with the lips. Patterson testified the “pop” to M.F[.]'s mouth made no sound and left no mark on the skin; M.F. did not visibly react or step back to avoid [Terkosky's] contact with her mouth. Patterson did not observe any sign that M.F. was choking and she did not see M.F. spit out an eraser. M.F. cried briefly. [Terkosky] told M.F. she would have to ride the second bus home. The students perceive waiting to ride the second bus as a disciplinary consequence. Patterson heard [Terkosky] remark that now M.F. can see how mean she really ( [Terkosky] ) can be, but did not know whether [Terkosky] was referring to the “pop” on the mouth or making M.F. ride the second bus. The following day Patterson reported her observation of [Terkosky] “popping” M.F. in...