STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 09-6649

)

HUEWITT FAMILY DAY CARE )

HOME AND ALISA HUEWITT, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 23, 2010, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Rebecca F. Kapusta, Esquire

Department of Children and Family Services

2383 Phillips Road

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Department of Children and Family Services should revoke the family day care license of Respondents.

PRELIMINARY STATEMENT

On September 16, 2009, the Department of Children and Family Services (Department) issued a Notice of Intent to Revoke a License to Operate a Child Care Facility, to Respondent, Alisa Huewitt, owner of Huewitt Family Day Care Home.1/ The Notice of Intent (Notice) alleged that Respondent Alisa Huewitt failed to protect children in her care by not complying with a safety plan devised by the Department, and failure to report allegations of child abuse to the Department. The Notice further informed

Ms. Huewitt of her right to request an administrative hearing.

Ms. Huewitt disputed the allegations of the Notice and requested an administrative hearing. The Department forwarded the request for a hearing to the Division of Administrative Hearings on or about December 8, 2009. A formal hearing was scheduled for March 5, 2010. The Department filed a Motion for Leave to Amend, and the parties filed a Stipulated Motion for Continuance. The motions were granted. The case proceeded on the allegations contained in the Amended Notice of Administrative Action (Amended Notice), which alleges 15 violations of the applicable statutes. The case was rescheduled for April 23, 2010, and was heard as scheduled.

At hearing, the Department presented the testimony of Miatta Jalaber, Jhaismen Collins, Shereka Korokous, Jeanne

Martin, Ayuana Hale, and Brenda Matteson. The Department’s Exhibits numbered 1 through 6 were admitted into evidence.

Ms. Huewitt testified on her own behalf and presented the testimony of Kimberly Black. Respondent's Exhibits 2 and 3 were admitted into evidence. Respondent's Exhibit 1 was rejected.

A one-volume transcript of the hearing was filed on May 7, 2010. The Department timely filed a Proposed Recommended Order and Respondent timely filed a post-hearing submission, which have been considered in the preparation of this Recommended Order.

All references to statutes are to Florida Statutes (2009), unless otherwise noted.

FINDINGS OF FACT

1. Respondent has been registered with the Department as a family home day care provider since September of 2001.

2. A registered family home day care does not have to meet all of the requirements that a licensed day care home must meet. However, the same background screening and training requirements must be met. Registered family day care homes are not inspected as often as licensed homes.

3. Each year, the registered provider must complete a renewal application that, among other things, identifies household members and substitute care-givers.

4. The operator of the home and all household members are required to pass a Level 2 background screening. Additionally, registered family home applicants must pass a 30-hour family day care home training, a five-hour early literacy course, and each year, complete 10 hours of in-service of continuing education.

5. Operators of the registered homes must designate a substitute care provider who is also required to go through the background screening. Ms. Huewitt designated Teresa Clary as her substitute care provider on her 2007, 2008, and 2009 applications.

   Previous Disciplinary Action

   
   

6. On three occasions in the fall of 2008 and on one occasion in February 2009, Respondent was found to be out of compliance with ratio requirements, i.e., caring for more children than allowed. Additionally, in November 2008, the Family Services Counselor from the Department called the home and the phone was answered by one of Ms. Huewitt’s adult daughters. That daughter informed the Family Services Counselor that Ms. Huewitt was not home and would be back shortly. The Department then determined that this violated the substitute care requirement as Teresa Clary was designated as the substitute care provider.

7. As a result, the Department issued an Administrative Complaint on January 12, 2009, regarding two incidents of being out-of-ratio and for violation of “listed substitute requirements.” A $300 fine was imposed and the registration was placed on probationary status in February 2009. In a letter dated August 27, 2009, the Department informed Ms. Huewitt that the Probationary Registration was lifted effective August 9, 2009, because “the Operator has been in compliance with ratio and capacity requirements during periodic monitoring/inspections while on probationary registration.”2/

   Facts concerning the Amended Notice of Administrative Action

   
   

8. Ms. Huewitt has three adult children: Jennifer Oliver, Stephanie Oliver, and Anthony Oliver. Jennifer Oliver was listed as an “other family/household member” on the 2007, 2008, and 2009 applications. As a result, a background screening was conducted on Jennifer. The background screening revealed a disqualifying offense. Jennifer requested an exemption from disqualification, but was denied. Consequently, Jennifer Oliver was not permitted to be in the home during the operational hours of the day care.

9. On February 2, 2009, Ms. Huewitt entered into a safety plan in which she agreed not to allow her daughter, Jennifer, to supervise the children while in her care, or even to allow

   Jennifer to be in the residence while children are in her care during business hours.

10. Despite this, on August 11, 2009, at approximately 9:25 a.m., the Family Services Counselor, Miatta Jalaber, went to Ms. Huewitt’s home and saw Jennifer in the home. Jennifer exited the home as Ms. Jalaber did her walk-through. As a result, Ms. Jalaber called her supervisor, who instructed

    Ms. Jalaber to write another safety plan for Ms. Huewitt.

    
    

11. The August 11, 2009, safety plan was hand-written by Ms. Jalaber while at Ms. Huewitt’s home day care and states, “I Alisa Huewitt understand that my daughter, Jennifer Oliver, must not be present in my residence [address] during operating hours 7:30 a.m.-6:00 p.m. M-F while I have children in care.” The safety plan was signed by both Ms. Jalaber and Ms. Huewitt.

    Ms. Jalaber made subsequent visits to Ms. Huewitt’s home on October 30, 2009, December 29, 2009, January 29, 2010,

    February 5, 2010, February 19, 2010, and March 30, 2010. No other persons were present and Ms. Huewitt’s home was in ratio during those visits. She did observe Jennifer in the home on April 16, 2010, but the day care was closed that day.

12. Stephanie Oliver is not listed on any of the applications as a person residing in the home, but has been seen at Ms. Huewitt’s during hours when the day care is open. While there was some testimony that both Stephanie and Ms. Huewitt’s

    son Anthony have some sort of criminal background and that they have been seen at the day care during business hours, the record is insufficient to establish that their criminal records contain disqualifying offenses, or that they actually live in the home. What is clear is that Ms. Huewitt is of the belief that it is not necessary to list persons who do not actually reside in the home, but who frequently visit the home, on her applications under the category “Other Family/Household Members.”

13. There were instances in which Ms. Jalaber went to the day care home and was led to believe that Jennifer Oliver was Stephanie Oliver. Ms. Jalaber only learned that the daughter she saw and spoke to at the home was Jennifer, who was not supposed to be there during working hours, when she attended Jennifer’s exemption from disqualifying fact-finding meeting. While the record is insufficient to clearly support a finding that Ms. Huewitt lied to Ms. Jalaber about her daughter’s identity, she was not forthcoming with clarifying the confusion.

14. In July 2009, the Department received an abuse report that Ms. Huewitt’s grandson, Kory Hill, Jr., sustained a skull fracture in her residence during business hours. Ms. Jalaber went to Ms. Huewitt’s home, not to investigate the abuse report, but because there was concern that Kory Hill, Sr., who reportedly was taking care of Kory Hill, Jr., on the day of the incident, was residing in the home. Kory Hill, Jr., is

    Jennifer’s son. Ms. Jalaber addressed her concerns with Ms. Huewitt.3/

15. During this visit, Ms. Jalaber learned that there was a separate structure in back of Ms. Huewitt’s house.

    Ms. Jalaber describes it as being just three steps in back of the main house. The structure contains a large room, a closet, and a bathroom and will hereinafter be referred to as “the apartment.”

16. Ms. Jalaber observed clothes in the apartment’s closet and throughout the apartment, and sofa cushions on the floor.

    It appeared to Ms. Jalaber that someone was residing in the apartment.

17. Ms. Huewitt denies that Mr. Hill, Sr., resided in her home. However, Ms. Huewitt acknowledges that her infant grandson, Kory Hill, Jr., was injured while in the care of his father, Kory Hill, Sr., and that the injury took place in the apartment in back of her house. The injury took place during the day while children were in her care in the main part of her house.

18. Jhaismen Collins is a Child Protective Investigator with the Department. She was assigned to investigate the abuse report regarding this incident. Her investigation began July 1, 2009, at the emergency room where Kory Hill, Jr., had been taken. While there, she spoke to Ms. Huewitt and other family

    members present in the emergency room. She then made several visits to Ms. Huewitt’s home to follow-up, after the baby was discharged from the hospital.

19. During the follow-up visits, Ms. Collins observed Stephanie in the home and observed Kory Hill, Sr., packing his belongings to leave the home. While the evidence is inconclusive as to whether Mr. Hill actually resided in the apartment behind Ms. Huewitt’s home, it is clear that he frequented the home and the apartment behind the home to visit his son. His son, Kory, Jr., and another son, Kentavious, who is also Ms. Huewitt's grandson, are now attending Ms. Huewitt’s day care.

20. Ayuana Hale is a Dependency Case manager for the Department. Her job is to provide needed services to the child and family in the case of a verified finding of abuse, neglect, or abandonment. She was assigned to the case involving Kory Hill, Jr., after the abuse investigation was closed as verified. Ms. Hale testified that Mr. Hill is currently incarcerated. She has knowledge of this because she is obligated to try to offer Mr. Hill services while he is incarcerated.

21. Parents of children who attend Ms. Huewitt’s home day care are extremely complimentary of the care their children receive, and are not concerned with the safety of their children while there.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.57(1), Fla. Stat. This proceeding is de

    novo. § 120.57(1)(k), Fla. Stat.

    
    

23. The Department of Children and Family Services is the agency charged with the responsibility of licensing and registering family day care homes in the state of Florida.

    § 402.313, Fla. Stat.

    
    

24. The Amended Administrative Notice notified Respondent Huewitt that the Department was revoking her registration to operate the Huewitt Family Day Care Home citing as authority Sections 39.202(7)4/, and 402.313, Florida Statutes. Specifically, the Amended Notice alleges in pertinent part as follows:

    This decision is based on the following violations:

    
    

    1. On September 5, 2002, the Department visited the home and found the family home day care to be out of compliance with ratio requirements.

       
       

    2. On or about April 24, 2002, Ms. Huewitt entered into a safety plan with the Department agreeing that her new husband would not be in the home during the day care operating hours as he had disqualifying criminal charges.

    3. On October 23, 2008, the Department received a complaint that the Huewitt Family Day Care Home was out of compliance with ratio standards. Upon visit to the home, the licensing counselor discovered the home to be out of compliance.

       
       

    4. On November 12, 2008, the family home day care was found to be out of compliance with ratio standards.

       
       

    5. On November 14, 2008, Ms. Huewitt left the children in the care of her daughter, Stephanie Oliver, who was not listed or approved as a substitute care giver.

       Ms. Oliver also had not been background screened.

       
       

    6. On November 21, 2008, the family home day care was found to be out of compliance with ratio requirements.

       
       

    7. On January 29, 2009, it was discovered that the owner/operator’s adult daughter, Jennifer Oliver, had a disqualifying criminal charge.

       
       

    8. On February 2, 2009, the owner/operator agreed to a safety plan that prohibited her daughter, Jennifer Oliver, from being in the home during operating hours or having any supervisory capacity over the children in the care of the family home day care.

       
       

    9. On February 10, 2009, Ms. Huewitt was notified that she was being placed on probationary status for a period of (6) months for failure to comply [sic] ratio and capacity requirements. Ms. Huewitt was fined and afforded an opportunity for hearing. However, Ms. Huewitt paid the fine and did not request a hearing.

       
       

    10. On July 2, 2009, an abuse report was received by the Department alleging that the owner/operator’s grandson sustained a skull fracture. Perpetrator was unknown. On

        July 2, 2009, the Child Care Services Office was notified about a report regarding the Operator’s grandchild being injured while at the home of Ms. Huewitt during the operating hours of the day care. During the course of the investigation, Ms. Oliver’s boyfriend, who is the father of the injured child, was staying/sleeping in the small room out back of the house on the day of the incident.

        The injured child’s father, Mr. Kory Hill, Sr., was on probation at the time and background screening paperwork was never submitted for him. The investigation regarding the injury to the child has been closed with the following findings: Verified for inadequate supervision for Alisa Huewitt, Operator; Jennifer Oliver, adult daughter living in the home and Kory

        Hill, Sr., father of the injured child. The investigation also verified physical injury and bone fracture, however the caregiver responsible is unknown. The investigation also was verified as threatened harm and the caregiver responsible is Kory Hill, Sr.

        
        

    11. On August 11, 2009, Licensing Counselor Miatta Jalaber made a home visit to Huewitt Family Day Care Home where it was discovered that Jennifer Oliver, an adult daughter, was in the home during the operating hours of the family day care home. On February 2, 2009, Ms. Huewitt signed a safety plan which stated “I Alisa Huewitt agree not to allow my daughter, Jennifer Oliver to supervise any children while in my care. I also agree not to allow my daughter, Jennifer Oliver to be in the residence while children are in care during business hours. I understand that abiding by this safety plan is to ensure the children’s safety and well- being.” This was a direct violation of the signed safety plan. Ms. Jennifer Oliver has a background screening disqualification dated January 12, 2009, and was later denied an exemption.

    12. On several visits to the home, since the July 2, 2009, abuse report investigation began, Jennifer Oliver, Stephanie Oliver and Anthony Oliver, Jr., have all been discovered in the home during operating hours and while children were present. Neither Stephanie nor Anthony have [sic] been background screened. Ms. Huewitt has signed safety plans on two prior occasions agreeing to keep Jennifer Oliver out of the home during operating hours.

        
        

    13. On August 25, 2004, the Department closed an abuse investigation involving Ms. Huewitt’s daughter. The case alleged medical neglect and was closed with no indicators once Ms. Huewitt took the necessary steps to get the care needed for her daughter.

        
        

    14. On November 18, 2004, the Department closed an abuse report alleging medical neglect as to Ms. Huewitt's daughter. The case was closed with no indicators once

        Ms. Huewitt took the necessary steps to get the care needed for her daughter.

        
        

    15. On July 2, 2009, another report was investigated by the Department regarding physical abuse on Ms. Huewitt’s grandchild. The father of the child resided in the home and was arrested as a result of the alleged maltreatment.[5/]

        
        

        The above noted infractions place the children in your care at risk of harm and jeopardize their safety and well being. The statutes were written for the health and safety of children in care and must be maintained at all times.

        
        

25. Section 402.310, Florida Statutes, authorizes the Department to take adverse action regarding the registration of

    the family day care home, and reads in pertinent part as follows:

    Disciplinary actions; hearings upon denial, suspension, or revocation of license; administrative fines.--

    
    

    (1)(a) The department or local licensing agency may administer any of the following disciplinary sanctions for a violation of any provision of ss. 402.301-402.319, or the rules adopted thereunder:

    
    

    1. Impose an administrative fine not to exceed $100 per violation per day. However, if the violation could or does cause death or serious harm, the department or local licensing agency may impose an administrative fine, not to exceed $500 per violation per day in addition to or in lieu of any other disciplinary action imposed under this section.

       
       

    2. Convert a license or registration to probation status and require the licensee or registrant to comply with the terms of probation. . . . A probation-status license or registration may be suspended or revoked if periodic inspection by the department or local licensing agency finds that the probation-status licensee or registrant is not in compliance with the terms of probation. . . .

       
       

    3. Deny, suspend, or revoke a license or registration.

       
       

       (b) In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:

       
       

       1. 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.

          
          

       2. Actions taken by the licensee to correct the violation or to remedy complaints.

          
          

       3. Any previous violations of the licensee. (emphasis supplied)

       
       

26. Section 39.302(7), Florida Statutes, is cited in the Amended Notice and states that if a person is a licensee of the Department and is named in any capacity in three or more reports within a five-year period, the Department may review those reports and determine whether the information contained in the reports is relevant for purposes of determining whether the person’s license should be renewed or revoked.

27. Section 402.313(3), Florida Statutes, provides that child care personnel in family day care homes shall be subject to the applicable screening provisions. For purposes of screening in family day care homes, the term “child care personnel” includes family members over the age of 12 years residing with the operator, or persons over the age of 12 who are residing with the operator in the family day care home.

28. The Department intends to revoke the registration of Respondent’s family day care registration. As the party asserting the affirmative of an issue before this administrative tribunal, the Department has the burden of proving the allegations contained in the Amended Notice. Florida Department

    of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981).

29. No evidence was presented regarding paragraphs 1 or 2 of the Amended Notice. Accordingly, the Department did not prove the allegations contained in these paragraphs.

30. The allegations contained in paragraphs 3, 4, 5, 6, and 9 of the Amended Notice relate to an earlier Administrative Complaint dated January 12, 2009. This resulted in disciplinary action which consisted of the imposition of a $300 fine, which was paid, and a period of probation, which was lifted effective August 27, 2009. Accordingly, the allegations in these enumerated paragraphs are only considered in the context of any appropriate penalty in the instant proceeding.

31. Regarding the allegations contained in paragraphs 7, 8, 11, and 12, of the Amended Notice the Department did establish that Ms. Huewitt’s daughter, Jennifer Oliver, who committed a disqualifying offense in the past and who has not been granted an exemption from disqualification, was present in the home on several occasions. The Department further established that it entered into two safety plans, one dated February 2, 2009 and another dated August 11, 2009, in which Ms. Huewitt agreed that Jennifer would not be in the day care

    during operating hours and that these safety plans were violated

    in that Jennifer continued to be present in the home during operating hours.

32. As to the allegations regarding Ms. Huewitt’s other children, the evidence established that Stephanie was frequently in the home and that Anthony was occasionally in the home. However, the evidence does not establish that Stephanie and Anthony actually resided in the home, or that Ms. Huewitt was required or instructed to declare them on her applications in light of their frequent visits to the home. The Department asserts in its Proposed Recommended Order that the definition of child care personnel found in Section 402.313(3) includes “long- term visitors, live-ins, paramours, relatives, and extended seasonal visitors.” However, the Department does not cite to any authority to support this interpretation.

33. The allegations in paragraphs 10 and 15 concern the abuse report and the incident involving Ms. Huewitt’s grandson. It is beyond the scope of this proceeding to establish the underlying facts surrounding the abuse report. What was established by the evidence was that an injury was sustained by Ms. Huewitt’s grandson while in Ms. Huewitt’s home or the apartment on the property, during operating hours.

34. The original Administrative Notice charged Ms. Huewitt with failing to report the allegations of the child abuse incident concerning her grandson, Kory Hill, Jr. However, the

    Amended Notice does not include this charge. In any event, the evidence does not establish that Ms. Huewitt failed to inform anyone of the incident.

35. No evidence was presented as to the allegations contained in paragraphs 13 or 14. Further, the allegations in these paragraphs state that the referenced abuse reports were closed with no indicators.

36. The crux of the problem relates to those who are in and around Ms. Huewitt’s day care, not with the care that she provides to the children. What is clear to the undersigned is that many of Ms. Huewitt’s problems with non-compliance are centered on her family members taking advantage of her generosity, and showing disregard for the constraints that are imposed on Ms. Huewitt in order for her to operate a family home day care.

37. The undersigned notes that Ms. Huewitt, in her post- hearing submission, states that Jennifer no longer resides in her 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 placing the license on probation, requiring

Respondent to attend further training in the requirements of applicable statutes and rules regarding who must be listed on her applications, requiring those listed to undergo background screening, and requiring successful completion of such training, with no further incidents, prior to approval of Respondent's application for renewal of her registration.

DONE AND ENTERED this 24th day of June, 2010, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 24th day of June, 2010

ENDNOTES

1/ While the style of the case lists Ms. Huewitt and her family day care home as separate Respondents, they will be referred to simply as “Respondent”, as Ms. Huewitt is the operator of her family day care home and the Administrative Complaint was addressed to her.

2/ The facts underlying that administrative complaint and penalty are not being re-litigated in this proceeding. This prior disciplinary action is referenced for purposes of determining the appropriate penalty imposed as contemplated in

Section 402.310(1)(b)3., Florida Statutes, concerning the Amended Notice.

3/ The facts underlying the abuse report are not the subject of this proceeding, and the abuse report itself is not in evidence. However, these facts are referenced in relation to the allegations in the Amended Notice.

4/ The correct citation appears to be Section 39.302(7), Florida Statutes.

5/ The paragraphs are not numbered in the Amended Notice, but have been numbered herein by the undersigned for ease of reference.

COPIES FURNISHED:

Rebecca Falcon Kapusta, Esquire Department of Children

and Family Services 2383 Phillips Road

Tallahassee, Florida 32308

Alisa Huewitt

Huewitt Family Day Care Home 2623 Holton Street

Tallahassee, Florida 32310

Gregory Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gerald B. Curington, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

George H. Sheldon, 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: 09-006649

Orders for Case No: 09-006649