Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: M. P., pro se
For Respondent: Ralph J. McMurphy, Esquire
Whether Petitioner's June 1, 2007, application for registration as a family day care home, pursuant to Section 402.313, Florida Statutes, may be granted.
Petitioner applied for registration as a family day care home, and the Department of Children and Family Services (DCF) denied it. Petitioner timely requested a disputed-fact hearing, and the cause was referred to the Division of Administrative Hearings on or about August 28, 2007.
Final hearing was initially scheduled for October 30, 2007, but was continued upon motion.
At hearing on December 20, 2007, the style of this cause was orally amended as set-out above to conform to confidentiality requirements.
Although Petitioner bore the duty to go forward and the burden of proof, Respondent presented first for convenience's sake. Respondent presented the oral testimony of Petitioner, Samuel Hernandez, and Marsha Carpenter, and had DCF Exhibits One through Four admitted in evidence. Petitioner testified on her own behalf and presented the oral testimony of Margaret Harvey. Petitioner’s Exhibits P-1 through P-6 were admitted in evidence.
No transcript was provided. Only DCF filed a Proposed Recommended Order on January 9, 2008. That Proposed Recommended Order has been considered in preparation of this Recommended Order.
DCF's August 8, 2007, letter denied Petitioner’s June 1, 2007, application to register to operate a family day care home due to a verified abuse report of exploitation by
Petitioner of her elderly mother; Petitioner's personal history of mental health issues; and a circuit court’s failure to approve Petitioner as an alternative long-term caretaker of her grandchildren in connection with an abuse or neglect investigation and dependency case brought against the children's mother.
Unlike licensed family day care homes and facilities, registered homes are not subject to pre-licensure inspection, periodic or surprise inspection after licensure, or DCF monitoring after children are placed in the home. Therefore, in consideration of applications for registration as a family day care home, DCF is particularly careful to make sure that there is nothing in an applicant’s background that would indicate a potential risk for children left in the applicant’s care.1/ Accordingly, DCF conducts a background check that includes its central hotline computer system as well as criminal background checks, pursuant to Chapter 435, Florida Statutes.
Marsha Carpenter conducted the screening of Petitioner's application. Her search turned up two prior cases
in which Petitioner had been named as a responsible party in the final decisions.
FPSS 2004-012525-01, received by DCF on May 7, 2004, was closed with verified findings of exploitation by Petitioner of an elderly, vulnerable adult, who was Petitioner’s mother. This is the only FPSS report referred-to in the Agency’s denial letter.
At hearing, evidence was also received concerning FPSS 2004-405767-01, received by DCF on August 27, 2004. No explanation was offered as to why this report, which returned a verified finding of “inadequate supervision” of her three-year- old granddaughter against Petitioner, was not mentioned in DCF’s denial letter.
Even with the testimony of the investigator in FPSS 2004-012525-01 (elderly exploitation), much of that report does not even rise to the level of hearsay consideration permitted by Section 120.57(1)(c), Florida Statutes. Therefore, it cannot be relied upon in its entirety here.
The credible evidence presented herein, including numerous admissions by Petitioner, support a finding that Petitioner was successively hospitalized in two separate mental health facilities for two separate short periods between May 4, 2004, and June 10, 2004, and that these two short hospitalizations were a result of the great stress Petitioner
had endured in caring for her mother, who had just suffered a stroke, and in caring for her brother, who had suffered from a debilitating illness which ultimately caused his death on
May 24, 2004. Petitioner thought she may have been hospitalized three times, instead of two times, and testified without refutation that the hospitalizations occurred because she was unable to care for herself in her great grief.
Upon the totality of the competent credible evidence, it is further found that during the period addressed by FPSS 2004-012525-01, Petitioner was operating under a legitimate power of attorney from her mother and was also either a legitimate co-signor on her mother's checking account or legitimate co-payee on her mother's government checks. During this period, Petitioner used a check to access her mother's money so as to pay all, or some, of her own utility bill. In mitigation of this diversion of her mother's funds, Petitioner intended that another check of Petitioner's own would be used to pay all, or some, of her mother's nursing home expenses, thereby making-up the deduction of her mother's money she had used for her own utility payment. However, neither her mother's money nor Petitioner's own check reached Petitioner's mother's nursing home, and Petitioner's mother’s nursing home expenses were not, in fact, paid by Petitioner. While Petitioner attributed her failure to pay the nursing home to loss of money from her own
checking account, due to her own check, and/or due to her mother's endorsed government check having been cashed by a third party without Petitioner's authorization, there still remains no evidence that Petitioner ever made good on paying her mother’s expenses at her mother’s nursing home.
FPSS No. 2004-405767-01, relates to a later date in 2004, when Petitioner's grandchildren, a boy and a girl, were staying with her. Petitioner admitted that she left the children alone and unsupervised in her yard while she went to answer her phone. Petitioner maintained that she was only away from the yard for five minutes and stated that she, herself, rather than a neighbor, as stated in the FPSS report, had summoned the police. However, Petitioner also admitted that the period of time she left her grandchildren unattended had been sufficient for an older neighborhood boy to solicit oral sex from her three-year-old granddaughter.
Based on the evidence as a whole, it is not credible that the grandchildren were left alone for only five minutes, but even so, Petitioner conceded that molestation, or even kidnapping, could have occurred in the period of time the children were left unsupervised, even if that period had been only five minutes.
On a subsequent occasion, M.P.'s grandchildren were taken into custody in connection with a DCF abuse/neglect
investigation of their mother, Petitioner's daughter. Due to Petitioner’s mental health history, the two prior FPSS reports, and the criminal history of an uncle living with Petitioner at the time, DCF did not recommend to the circuit court that Petitioner be considered for long-term placement of the grandchildren. The circuit court placed the grandchildren with a neighbor and friend of Petitioner instead of with Petitioner.
During the extended period of time that Petitioner's grandchildren were fostered by Petitioner’s neighbor and friend, Petitioner paid their room and board and regularly visited them in the foster mother's home.
The foster mother is an old friend of Petitioner and a member of her church. She testified to Petitioner's honesty, kindness, and love of her grandchildren.
Since 2004, Petitioner has been taking psychotropic medication for her mental health, but she presented no medical evidence about the effects of this medication or whether she is safe to be around children while she is taking it.
Petitioner presented credible testimony and supporting evidence that since 2004, she has regularly worked as a Certified Nursing Assistant (CNA) without any reported incidents of neglect, abuse, or exploitation of patients. The credible evidence demonstrated she has been a licensed CNA for 23 years, not the 30 years she testified to.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).
As the applicant for an initial registration, M.P. has the burden of presenting evidence of her fitness for registration and the ultimate burden of persuasion by a preponderance of the evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996). See also Section 120.52 (9), Florida Statutes, defining “registration” as a license.
DCF has cited the following Florida Statutes: Sections 402.310(1)(a), 402.313(1)(a), 402.302(13), 39.202(1)(a)5., 39.402(1)(a), 39.201(6), and 402.310(b), and Florida Administrative Code Rules 65C-22.001(5) and 65C- 20.013(7). Within the Florida Statutes (2007), there is no Subsection 39.202(1)(a)5., but there is a Subsection 39.202(2)(a)5., which has been considered, in pertinent part. There is no Subsection 402.310(b), but there are Subsections 402.310(1)(b)1-3 and (c)1., which have been considered, in pertinent part. Section 39.402(1)(a) simply provides for all children to have a court hearing before they are placed in a shelter, unless there is probable cause to believe that the
child has been abused, neglected, or abandoned, and is not particularly helpful for resolving the issues of this case. Rules 65C-20.013(7) and 65C-22.001(5), do not apply directly to registered day care homes. They provide specific staffing and supervision standards to child care facilities and large family child care homes, but also are not particularly helpful for the issues herein.
The statutes for consideration are:
Section 402.310 Disciplinary actions; hearings upon denial, suspension, or revocation of license or registration; administrative fines.
(1)(a) The department or local licensing agency may administer any of the following sanctions for a violation of any provision of ss.402.301—402.319, or the rules adopted thereunder:
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3. Deny, suspend, or revoke a license or registration. (Emphasis supplied)
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(1)(b) In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:
The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 402.301—402.319 have been violated.
Actions taken by licensee or registrant to correct the violation or to remedy complaints.
Any previous violations of the licensee or registrant.
(1)(c) The department shall adopt rules to:
1. Establish the grounds under which the department may deny, suspend, or revoke a license or registration or place a licensee or registrant on probation status for violations of ss. 402.301-402.319.
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402.313 Family day care homes—
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(1)(a) If not subject to license, family day care homes shall register annually with the department, . . .
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(3) Child care personnel in family day care homes shall be subject to the applicable screening contained in ss. 402.305(2) and 402.3055. . . . (Emphasis supplied)
402.302 Definitions.—
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(13) “Screening” means the act of assessing the background of child care personnel and volunteers and includes, but is not limited to, employment history checks, local criminal records checks through local law enforcement agencies, fingerprinting for all purposes and checks in this subsection, statewide criminal records checks through the Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation.
39.202 Confidentiality of reports and records in cases of child abuse or neglect.—
In order to protect the rights of the child and the child’s parents or other persons responsible for the child’s welfare, all records held by the department concerning reports of child abandonment, abuse, or neglect, including reports made to the central abuse hotline and all records generated as a result of such reports, shall be confidential and exempt from the provisions of s. 119.07(1) and shall not be disclosed except as specifically authorized by this chapter. Such exemption from s. 119.07(1) applies to information in the possession of those entities granted access as set forth in this section.
Except as provided in subsection (4), access to such records, excluding the name of the reporter which shall be released only as provided in subsection (5), shall be granted only to the following persons, official, and agencies:
Employees, authorized agents, or contract providers of the department, the Department of Health , the Agency for Persons with Disabilities, or county agencies responsible for carrying out:
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5. Licensure or approval of adoptive homes, foster homes, child care facilities, facilities licensed under chapter 393, or family day care homes or informal child care providers who receive subsidized child care funding, or other homes used to provide for the care and welfare of children; . . .
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Section 39.201. Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death, central abuse hotline.
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(6) . . . Information in the central abuse hotline and the department’s automated abuse information system may be used by the department, its authorized agents or contract providers, the Department of Health, or county agencies as part of the licensure or registration process pursuant to ss. 402.301-402.319 and 409.175-409.176.
Although Sections 402.305(2) and 402.3055, adopted in Section 402.313(3) for registered family day care homes, specifically require only a criminal records check for specific criminal offenses (with exemption proceedings) and a specific type of review for owners and employees of child care facilities who have previously had licenses revoked, suspended, or denied, the entire thrust of Sections 402.301-319, is directed to the safety of children. Subsections 402.301(1)-(3) give explicit goals for child care facilities as follows:
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 sate and to promote their emotional and intellectual development and care. Toward that end:
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.
It is the intent of the Legislature that all owners, operators, and child care personnel shall be of good moral character.
It shall be the policy of the state to ensure protection of the children and to encourage child care providers and parents to share responsibility for and to assist in the improvement of child care programs.
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By adopting, in Section 402.302(13), a definition of "screening," which includes more than just a check to determine whether an applicant has one of the automatically disqualifying convictions under Chapter 435, or Section 402.305(2), or the licensing problems of Section 402.3055, Florida Statutes, the Legislature has indicated that a careful balancing of many factors is appropriate to try to predict whether an applicant to operate a day care home will provide safe and nurturing care for children while avoiding the potential of violations listed within Sections 402.301-402.319.
Section 402.302(13) supports an interpretation that when an applicant has significant mental or physical health issues that might be reasonably expected to impact the applicant's ability to provide appropriate care for young children, the applicant must provide more than has been presented here.
It is more than three years since the series of unfortunate events that adversely affected Petitioner's mental health in 2004, but as she is still taking medication, she might wish to present evidence from a physician explaining the nature
of the medications she is taking and how they affect her, her dependability for taking her medications as prescribed, her current state of mental health, and that she does not currently pose a risk to children in her care. Testimony of her reliability from a current employer or supervisor, testimony concerning her successfully completing any child care courses that might apply, and similar evidence also would be useful in determining her current fitness to be registered.
Petitioner put forth her nursing certification and her
23 years of experience working as a licensed CNA. That she has this background is a credit to her and constitutes some proof of her ability to care for patients, but because most of this period of nursing experience pre-dated her mental health problems, and because the standards and expectations of the Board of Nursing with respect to the care and supervision needed by patients who may be confined to a bed or who may be simultaneously in the care of several nurses are not entirely relevant to the care of active, young children, some further evidence concerning her ability to care for young children is necessary.
More relevant and compelling evidence is needed than was presented herein to establish, by a preponderance of the evidence, that Petitioner should be granted registration as a child day care home at this time.
