STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA SHELL, )

)

Petitioner, )

)

vs. ) Case No. 98-2390

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 25, 1998, in Bristol, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Patricia Shell, pro se

Post Office Box 794 Bristol, Florida 32321

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue is whether Respondent should have granted Petitioner a license to operate a family day care home.

PRELIMINARY STATEMENT

By certified letter dated May 4, 1998, Respondent Department of Children and Family Services (Respondent) denied Petitioner Patricia Shell's (Petitioner) application for a license to operate a family day care home. Petitioner requested a formal hearing to contest Respondent's denial on May 11, 1998.

Respondent referred this case to the Division of Administrative Hearings on May 20, 1998.

On June 11, 1998, Respondent filed a Motion for Partial Summary Recommended Order. The undersigned issued an Order Denying Motion for Summary Recommended Order on July 1, 1998.

At the hearing, Petitioner testified on her own behalf and presented the testimony of three additional witnesses.

Petitioner offered one exhibit which was accepted into evidence. Respondent presented the testimony of three (3) witnesses and offered one exhibit which was admitted into evidence.

After the hearing, Respondent filed its Proposed Recommended Order on October 5, 1998. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. In January 1992, Petitioner operated a foster home for dependent children. The foster home was licensed by Respondent's predecessor, the Department of Health and Rehabilitative Services (hereinafter referred to as Respondent).

2. In January 1992, Respondent received a report that Petitioner and her husband, Jim Shell, had meted out bizarre and

   excessive punishments to the children in their foster home. The report also alleged that Petitioner tied the younger foster children into their cribs at night. This report resulted in an investigation by Respondent.

3. In the year prior to the initiation of the investigation, the following children stayed in Petitioner's foster home: H.S. (d.o.b. 4-6-89); S.S. (d.o.b. 10-1-86); T.H. (d.o.b. 5-3-89); S.A.C. (d.o.b. 9-18-88); B.Y. (d.o.b. 11-2-80) and G.Y. (d.o.b. 12-2-82. H.S. and S.S. were sisters. S.A.C.,

   B.Y. and G.Y. were siblings. T.H. was mentally retarded.

   
   

4. Petitioner gave B.Y. more household duties in the home than would be expected as chores for a child of her age. These responsibilities included housecleaning, laundry and child care. Additionally, Petitioner often kept B.Y. home from school to do housework. To excuse B.Y.'s absence, Petitioner would write notes to the school, falsely stating that B.Y. had a doctor's note and stayed home sick.

5. B.Y. and G.Y. were forced to do push-ups as punishment for minor infractions. Petitioner's testimony that the children were required to do these push-ups as a joke or game is not persuasive.

6. Mr. Shell spanked G.Y. for mis-reciting spelling words. This occurred once a week. On one occasion, B.Y. observed Mr. Shell hit G.Y. on the buttocks with a two by four.

7. On another occasion, Mr. Shell jerked S.A.C. off a trampoline in the backyard, spanked her and threw her onto the ground. As a result of this rough treatment, S.A.C.'s head struck a tree.

8. Petitioner regularly tied H.S.; S.S.; T.H.; and S.A.C. into their cribs at night because they would get up after being put down for the night. When B.Y. untied the children, Petitioner told her that when the children are tied up, they are supposed to remain that way.

9. There was great strife in the Shell household. Petitioner and her husband often argued. For example, on B.Y's first night in the home, Petitioner hit Mr. Shell on the head with a frying pan.

10. It is contrary to Department policy to physically restrain or punish children in foster care. Foster parents learn this in the training they receive before receiving their foster care licenses.

11. Notwithstanding Petitioner's claim that she is separated from her husband, they continue to live under one roof. The house they live in is on the same property where Petitioner intends to operate a family day care home.

12. The foregoing facts, among others, were set forth in the Respondent's final investigative report, Florida Protective Services System Abuse Report Number 92-007405.

13. On April 22, 1992, the Respondent sent a certified letter to Petitioner informing her that the investigative report had been classified as proposed confirmed, that she had the right to request that Respondent amend or expunge the report, and that any such request would be considered only if received by Respondent within sixty days of her receipt of the April 22, 1992 letter. The letter contained the following language:

    If you do nothing, your right to appeal the classification of the report will be completely barred. By not choosing [to ask for amendment or expungement], this report will automatically be classified as CONFIRMED. This means that you do not contest the department's right to maintain the report findings as stated, including your identification as a perpetrator. A perpetrator in a confirmed report of abuse, neglect or exploitation may be disqualified from working in certain positions of trust, including working with children, disabled adults or aged persons. (Emphasis supplied).

14. Petitioner signed the acknowledgment of receipt for the April 22, 1992, letter on April 27, 1992. She never requested amendment or expungement of the investigative report.

15. Because neither amendment nor expungement of the report was sought, the confirmed classification became final agency action sixty days after Petitioner's receipt of the letter on April 27, 1992. In other words, the agency action became final on June 26, 1992. No appeal was taken from this action.1

16. In 1994, the Agency for Health Care Administration granted Petitioner an exemption from disqualification from employment in positions covered by Section 400.512, Florida

Statutes. That section discusses the requirement for employment screening, using level 1 standards, for home health agency personnel, persons referred for employment by nurse registries, and persons employed by sitter, companion, or homemaker services registered under Section 400.509, Florida Statutes. The record does not indicate whether the Agency for Health Care Administration conducted an evidentiary hearing before making its decision to grant Petitioner the exemption.

CONCLUSIONS OF LAW

17 The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

1. A "family day care home" is defined in pertinent part as follows:

   (7) 'Family day care home' means an occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit.

   
   

   Section 402.302(7), Florida Statutes.

   
   

2. Persons who operate a "family day care home" must be licensed by or registered with Respondent. Section 402.301, Florida Statutes. That section provides as follows in pertinent part:

   402.301 Child care facilities; legislative intent and declaration of purpose and policy.--It is the legislative intent to

   protect the health, safety, and well-being of

   the children of the state and to promote their emotional and intellectual development and care. Toward that end:

   1. It is the purpose of ss. 402.301-402.319 to establish statewide minimum standards for the care and protection of children in child care facilities, to ensure maintenance of these standards, and to approve county administration and enforcement to regulate conditions in such facilities through a program of licensing.

   2. It is the intent of the Legislature that all owners, operators, and child care personnel shall be of good moral character.

3. Respondent may deny a license to operate a family day care home for any violation of Sections 402.301 through 402.319, Florida Statutes. Section 402.310(1)(a), Florida Statutes.

4. Among the actions which violate these provisions are spanking, any form of physical punishment, and any form of discipline which is severe, humiliating, or frightening. Section 402.305(12)(a), Florida Statutes.

5. The acts of abusive physical punishment exerted on G.Y. and the bondage of the small children in Petitioner's home clearly violate these standards. Given these facts, Respondent properly denied Petitioner's application to operate a family day care home in which she would have virtually unsupervised control over small children.

6. In the instant case, Petitioner has not met her burden of proving by a preponderance of the evidence that she has good moral character and should be licensed to operate a family day care home.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Department of Children and Family Services enter a

Final Order denying the application of Petitioner Patricia Shell to operate a registered family day care home.

DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998.

ENDNOTE

1/ Respondent cannot disqualify Petitioner from operating a family day care home based solely on a finding that she did not contest the allegations contained in FPSS Report No. 92-007405. Section 402.305(2), Florida Statutes, states as follows in pertinent part:

1. PERSONNEL.--Minimum standards for child care personnel shall include minimum requirements as to:

   
   

   1. Good moral character based upon screening. This screening shall be conducted as provided in chapter 435, using the level 2 standards for screening set forth in that chapter.

   2. The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07.

However, Section 435.04, Florida Statutes, which contains the level 2 screening standards, does not contain authority for Respondent to disqualify Petitioner from working in a child care position because she had a confirmed report of child abuse.

Likewise, Section 435.07, Florida Statutes, does not provide specifically for exemptions from disqualification for confirmed reports of abuse, neglect, or exploitation of children.

COPIES FURNISHED:

John R. Perry, Esquire Department of Children

and Family Services Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

Patricia Shell

Post Office Box 794 Bristol, Florida 32321

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-002390

Orders for Case No: 98-002390