STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOUNG AMERICAN DAYCARE CENTER, )

)

Petitioner, )

)

vs. ) Case No. 03-0075

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

) YOUNG AMERICAN HOMESTEAD )

DAYCARE CENTER, )

)

Petitioner, )

)

vs. ) Case No. 03-0291

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case on April 8, 2003, by video teleconference at sites in Miami and Tallahassee, Florida, before Florence Snyder Rivas, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bianca Rodriguez, pro se

Juanita Ramirez, pro se

Young American Day Care Center 1905 West 35th Street, No. 120

Hialeah, Florida 33012

For Respondent: Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether the Petitioner committed a violation of minimum child care standards, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By letters dated September 30, 2002, and October 3, 2002, the Department of Children and Family Services (the Department or DCFS) served notice of its intention to impose civil penalties totaling $1,000.00 on Petitioner Young American Day Care Center (Petitioner or Young American) for violation of state law governing minimum child care standards at its day care facilities located in Hialeah and Homestead, respectively.

More specifically, DCFS alleged that Young American had negligently supervised a two-year-old in care at its Hialeah facility, and had failed to adequately report and document an injury to that child, and, further, had violated state mandated requirements governing the ratio of child care workers to children in care.

Petitioner timely requested a hearing to contest the charges.

At the video teleconference on April 8, 2003, Petitioner presented the testimony of Blanca Rodriguez and Juanita Ramirez. The Department presented the testimony of Dr. Walter Lambert,

1. and O.F., Belkis Molina, Cassalee Eccles, and Benjamin Diaz, and offered five exhibits, which were accepted into evidence.

   At the conclusion of the evidentiary portion of the hearing, the parties were given ten days from the date of the filing of the transcript to file proposed recommended orders. The transcript was filed on May 27, 2003, and the Department thereafter timely requested an enlargement of time to file its proposed recommended order. The deadline was extended to

   June 16, 2003, and the Department timely filed. No submission was made on behalf of Petitioner.

   FINDINGS OF FACT

   
   

   1. On the morning of March 19, 2002, B.F., then age two, was in the care of Petitioner's Hialeah day care center. There she sustained a non-displaced spiral tibia fracture on her left leg.

   2. The tibia is the bone which bears the majority of the weight of the lower leg. The fracture sustained by B.F. was of sufficient magnitude that she was unable to bear weight on her

      lower leg, and therefore was unable to stand, walk, or run. Such fractures are painful. They are expected to, and in this case did, render the child tearful to the point of inconsolability.

   3. A fracture of the kind B.F. suffered is also known as a "toddler's fracture." When such a fracture is found in a non- ambulatory child, the probability is that it was intentionally inflicted. That presumption does not arise, however, for healthy children such as B.F.

   4. Petitioner claims that B.F. was injured at approximately 8:30 a.m. when she "slipped off a chair," but thereafter continued to play normally for an hour. Petitioner further claims that it was only when a teacher tried to change her diaper around 9:30 a.m. that B.F. began to cry and rapidly became inconsolable.

   5. The persons who gave that account of the incident did not testify, nor give a sworn statement at any time. There is no record evidence from anyone with personal knowledge of the conditions and circumstances in B.F.'s day care room on the date she suffered the fracture.

   6. The emergency room physicians who treated B.F.'s fracture rejected the possibility that the child could have played normally for an hour after she fractured her tibia in a "fall off a chair."

   7. The medical evidence regarding the fracture, which is clear, convincing, and undisputed, established that if the fracture sustained by B.F. occurred in the manner Petitioner claimed, it would have rendered the child in immediate need of medical attention. More specifically, B.F. would have been instantly rendered unable to bear weight and thus unable to walk, let alone play normally. The pain and attendant crying would have begun instantly, not an hour later.

   8. Under Petitioner's version of how the fracture occurred, the medical evidence compels the conclusion that B.F.'s caregivers allowed her to cry in pain for an hour before calling her parents. Negligent is a charitable characterization of Petitioner's conduct.

   9. If in fact B.F. played normally for an hour following the 8:30 a.m. fall from a chair, the medical evidence compels the conclusion that she did not sustain the fracture from that fall, but rather in some other manner at some other time. Two- year-olds must be under the supervision of certified caregivers at all times precisely so that if accidents happen, parents, treating physicians, and state regulators will know exactly what occurred.

   10. It was shortly after 9:30 a.m. when B.F.'s mother was called at her office and asked to come to the day care center. She summoned the child's father, and both parents were present

       by approximately 10:00 a.m. By this time, the parties agree,

       
       

       B.F. was hysterical. Her leg was swollen, painful to the touch, and she was unable to bear weight on the injured leg.

   11. The parents were not given an incident report detailing the accident, either at the time they were summoned to the center, nor at any time thereafter.

   12. B.F.'s parents rushed her to the emergency room at Miami Children’s Hospital where a cast was applied to the injured leg.

   13. On April 15, 2002, Belkis Molina (Molina), a licensing counselor assigned to the Hialeah facility, was present in the center for the purpose of further investigating the incident involving B.F., who, by this time, had been withdrawn from the facility. On that date, Molina observed that one staff member was present to supervise 17 toddlers. Florida law requires a staff-to-child ratio for that age group of one to six.

   14. In connection with her investigative duties, Molina asked to see the incident report that was required by law to have been done on March 19th. The document was produced, but the required parent signature was missing.

   15. Later, on a form requesting a hearing in this matter, Petitioner attached a copy of what appears to be the same incident report; however, this document stated that the father refused to sign the document.

   16. On April 30, 2002, Benjamin Diaz (Diaz), the Department licensing counselor assigned to Petitioner's Homestead facility, observed additional violations relating to the staff-to-child ratio requirement. Specifically, on that date, the baby room had a staff-to-child ratio of one to six. Florida law requires a ratio of one to four. Additionally, he observed the three-year-old room with one staff member for 19 children. The correct ratio for that age group is one-to- fifteen.

   17. Having observed these ratio violations, Diaz made a follow-up visit on May 14, 2002. On that day he observed that the two-year-old room had two staff members with 24 children. Florida law requires no les than one staffer for 11 children.

       CONCLUSIONS OF LAW

       
       

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

   19. In this case, the Department has satisfied its burden to show by clear and convincing evidence that the Petitioner committed the violations alleged in the administrative complaint, and the reasonableness of the proposed penalty. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   20. Unquestionably, B.F. was negligently supervised. No credible explanation for her fracture was provided; instead the

       explanation offered is completely inconsistent with clear and convincing medical evidence. If in fact B.F. suffered the fracture in the time and manner Petitioner claims, it was profoundly negligent, even cruel, to wait an hour to commence the process of notifying the parents so that medical attention could be provided to B.F.

   21. Petitioner further violated the law in failing to promptly and accurately document the incident.

   22. Finally, Petitioner was out of compliance on three occasions with state requirements for staff to child ratios.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order fining Petitioner $1,000.00.

DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2003.

COPIES FURNISHED:

Bianca Rodriguez Juanita Ramirez

Young American Day Care Center 1905 West 35th Street, No. 120

Hialeah, Florida 33012

Rosemarie Rinaldi, Esquire Department of Children and

Family Services

401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128

Paul Flounlacker, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Jerry Regier, Secretary Department of Children and

Family Services Building 1, Room 202

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: 03-000075

Orders for Case No: 03-000075