STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELA COLLIER,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 06-3674

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RECOMMENDED ORDER

Pursuant to notice, Administrative Law Judge Lawrence P. Stevenson conducted the administrative hearing in this proceeding on behalf of the Division of Administrative Hearings (DOAH) on November 29, 2006, by video teleconference between Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Angela Collier, pro se

2931 Grandola Drive

Orlando, Florida 32811

For Respondent: Richard Cato, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782 STATEMENT OF THE ISSUE

The issue is whether Respondent should deny Petitioner's renewal application to operate a registered family day care home

on the grounds that her failure to properly supervise children at her registered family day care home demonstrates Petitioner's inability to ensure the safety of children under Petitioner's care.

PRELIMINARY STATEMENT

By letter dated July 26, 2006, Respondent notified Petitioner that Respondent intended to deny Petitioner's renewal application for a registered family day care home on the grounds that Petitioner failed to properly supervise children at her registered family day care home, resulting in one child biting another so severely that the bitten child required emergency room treatment. Petitioner timely requested an administrative hearing.

At the hearing, Petitioner testified on her own behalf and submitted no exhibits for admission into evidence.

Respondent presented the testimony of Victor Kruppenbacher, the Department of Children and Family Services employee who conducted the investigation into the biting incident, and of Ivette Garcia, the Department's child care licensing supervisor for the district encompassing Orlando. Respondent's Exhibits A through E were admitted into evidence. Respondent's Exhibit D was a composite exhibit consisting of 17 emergency room photographs of A.H., the biting victim. Respondent's Exhibits A through D were received pursuant to the exemption set forth in

Section 39.202(2)(j), Florida Statutes (2006), but have been admitted under seal to protect the rights of the children involved.

Neither party requested a transcript of the hearing record.

Neither party filed a Proposed Recommended Order.

FINDINGS OF FACT

1. Respondent is the state agency responsible for registering family day care homes in Florida. Petitioner operated a registered family day care in her home for at least one year prior to her May 5, 2006, renewal application to operate a registered family day care home. Respondent proposes to deny that application.

2. By letter dated July 27, 2006, Respondent notified Petitioner that Respondent proposed to deny Petitioner's application to operate a registered family day care home (the "Notice of Denial"). The Notice of Denial provides that on April 7, 2006, Petitioner failed to properly supervise children at her registered family day care home, in violation of Section

   402.301 et seq., Florida Statutes (2005). The Notice of Denial states that, as a result of Petitioner's failure to properly supervise the children, one child bit another more than one time, and the child who was bitten had to be taken to the emergency room, which led to investigations by both the police and Respondent's protective investigation unit.

3. Respondent's protective investigation unit closed the case on June 5, 2006, with verified findings of neglect for the inadequate supervision that led to the injuries of the child who was bitten.

4. The undisputed facts were that, on April 7, 2006, Petitioner was caring for at least two children at her registered family day care home. A.H. was an 11-month-old male who had just begun staying at Petitioner's home. Petitioner did not have a crib in the home. At the suggestion and with the consent of A.H.'s mother, A.H. was strapped into his car seat for his nap. The car seat was placed on the floor of a bedroom in Petitioner's house. The second child, identified at the hearing only as E., was an 18-month-old male. E. was placed in a playpen for his nap, in the same bedroom as A.H. Petitioner knew that E. was capable of climbing out of the playpen. The bedroom door was closed while the children napped.

5. While the children were sleeping, a female neighbor knocked at Petitioner's door and asked to use her telephone. The two women stood talking in the doorway for at least five minutes. The neighbor heard screams coming from the bedroom, and asked Petitioner if she shouldn't check on the situation. Both women walked into the bedroom and saw E. standing over the crying A.H., who was still strapped into his car seat. Petitioner called out to E. to stop biting A.H.

6. Petitioner applied ice to A.H.'s swollen left eye. She testified that she attempted to phone A.H.'s mother, but could not reach her. When A.H.'s mother picked him up from Petitioner's home, she called the police and took the child to the emergency room at the Orlando Regional Medical Center. A.H.'s left eye was swollen. There were scratches and small bite marks on the left side of his face and his left arm. All of his injuries were consistent with his having been bitten and scratched by E. There was no indication that A.H. had been abused by an adult.

7. Victor Kruppenbacher, Respondent's investigator, testified that his investigation revealed that Petitioner had been arrested for assault and battery in the 1980s, and that two prior abuse reports had been lodged against her.

   Mr. Kruppenbacher further testified that Petitioner lied to him about both the arrest and the abuse reports.

8. Petitioner testified that she had already had problems with E.’s climbing out of the playpen, and that it was against her better judgment to place A.H. in the car seat for a nap. Petitioner nonetheless placed both children in the same room, behind a closed door, and did not herself notice A.H. crying until her neighbor pointed it out to her.

9. Respondent should not grant Petitioner's application to operate a registered family day care home. Petitioner failed to

   establish that she is able to ensure the safety of children to the level necessary to operate a registered family day care

   home.

   
   

   CONCLUSIONS OF LAW

   
   

10. DOAH has jurisdiction over the parties and subject matter of this case. §§ 120.569 and 120.57(1), Fla. Stat. (2006). The parties received adequate notice of the administrative hearing.

11. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by a preponderance of the evidence that she is able to ensure the safety of children to the level necessary to operate a registered family day care home. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Florida Department of Transportation v. J.W.C.

    Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

12. Petitioner failed to satisfy her burden of proof to establish that she is able to ensure the safety of children in her care to the level necessary to operate a registered day care home.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusion of Law, it is

RECOMMENDED that Respondent enter a Final Order denying Petitioner's renewal application to operate a registered family day care home.

DONE AND ENTERED this 4th day of January, 2007, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 4th day of January, 2007.

COPIES FURNISHED:

Angela Collier

2931 Grandola Drive

Orlando, Florida 32811

Richard Cato, Esquire Department of Children and

Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782

Gregory Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Luci D. Hadi, Secretary Department of Children and

Family Services Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Copelan, 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: 06-003674

Orders for Case No: 06-003674