vs.
TRUE HOPE AND DELIVERANCE MINISTRIES, INC., d/b/a TRUE HOPE DEVELOPMENTAL ACADEMY,
Respondent.
) Case No. 11-1860
On September 19, 2011, a formal administrative hearing in this case was held in Jacksonville, Florida, before Lawrence P. Stevenson, Administrative Law Judge, Division of Administrative Hearings.
For Respondent: T. A. Delegal, Esquire
Delegal Law Offices, P.A.
At issue is whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalties should be imposed.
On February 10, 2011, the Department of Children and Families (the "Department") filed a four-count Administrative Complaint (the "Complaint") against True Hope and Deliverance Ministries, Inc., d/b/a True Hope Developmental Academy ("True Hope"). On September 26, 2011, after the completion of the hearing, but before the filing of the transcript, the Department filed a Notice of Voluntary Dismissal in which it voluntarily dismissed with prejudice Counts II and III of the Complaint.
Therefore, only Counts I and IV will be summarized below and dealt with in the body of this Recommended Order.
Count I of the Complaint stated that during an inspection on October 26, 2010, a Department licensing counselor determined that direct supervision in the four-year-old group was inadequate in that a child had second-degree burns and the staff did not provide first aid or obtain medical attention. The Complaint alleged that staff was unable to account for how the child was injured, that the child was taken home by the director of True Hope, Allen Givens, who failed to notify the adult of the child's home that the child was injured. The Complaint
stated that this was a Class 1 violation pursuant to Florida Administrative Code Rule 65C-22.001(5)(a) and assessed a fine of
$500.00 due to the seriousness of the violation.
Count IV of the Complaint stated that during an inspection on October 26, 2010, a Department licensing counselor determined that the facility failed to immediately notify the custodial parents or legal guardians of T.H. regarding the child's serious illness, accident, injury or emergency on October 22, 2010. Two staff members at True Hope had observed the child with burns.
The parent was not notified when the injury was discovered, and the adult who received the child at home was not notified of the injury. The Complaint stated that this was a Class 2 violation under Florida Administrative Code Rule 65C-22.004(2), that the facility had been cited for the same violation on September 25, 2009, and that the fine for this second Class 2 violation was
$50.00.
The Complaint concluded with the following statement: "In addition to the fine the facility license shall be REVOKED." The Department has stipulated that, with the dismissal of Counts II and III of the Complaint, there are now insufficient grounds to seek revocation of True Hope's facility license.
True Hope filed a Notice of Contest and Request for Hearing ("Request") on or about April 8, 2011. In the Request, True Hope stated that it received the Complaint on March 14, 2011.
The Department has not asserted that that the Request was not timely filed.
On April 14, 2011, the Department forwarded the Request to the Division of Administrative Hearings for the scheduling and conduct of a formal hearing. The case was set for hearing on August 3, 2011. The hearing was convened as scheduled. During a recess, counsel for the parties engaged in settlement discussions that culminated in a joint ore tenus motion to continue the final hearing. The motion was granted and then memorialized in an order dated August 4, 2011. The hearing was rescheduled for September 19, 2011, on which date it convened and was completed.
At the hearing, the Department presented the testimony of Crystal Tyler, a child protective investigator for the Department; Lillie Gardner, an employee at True Hope during the period in question; and Meike Rice, a child care licensing counselor for the Department. The Department also introduced the deposition testimony of Ms. Rice. The Department's Exhibits A through E were admitted into evidence.
Respondent presented the testimony of Katrina McGriff, a teacher at True Hope. Respondent offered no exhibits into evidence.
The transcript of the hearing was filed at the Division of Administrative Hearings on October 13, 2011. The Department
timely filed its Proposed Recommended Order on October 20, 2011. Respondent filed its Proposed Recommended Order on October 24, 2011. The Department has not objected to Respondent's late filing and the undersigned has therefore considered Respondent's submission in preparing this recommended order.
The Department is authorized to regulate child care facilities pursuant to sections 402.301-402.319, Florida Statutes. Section 402.311 authorizes the Department to inspect licensed child care facilities. Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301-402.319.
True Hope is a child care facility operating pursuant to License Number C04DU0339. The facility is located at 3109 West Beaver Street, Jacksonville, Florida. Pastor Allen Givens is the director of True Hope.
Crystal Tyler is a child protective investigator for the Department. On Friday, October 22, 2010, Ms. Tyler was assigned to investigate possible abuse of T.H., a four-year-old girl who attended True Hope. Pastor Givens had phoned the abuse hotline at approximately 4:00 p.m., after True Hope employees had discovered an injury that appeared to be a burn on one of T.H.'s legs.
At approximately 8:35 p.m. on October 22, Ms. Tyler met T.H.'s mother, Ashley Cunningham, at the home of Kenya Harris. Ms. Harris regularly cared for T.H. from the time the child was dropped off by the daycare in the afternoon until Ms. Cunningham got off work and picked up T.H. in the evening.
Ms. Tyler observed burns on the backs of both of T.H.'s thighs. Based upon her training and experience, Ms. Tyler characterized the wounds as second-degree burns. Ms. Tyler believed the wounds were fresh because they were weeping.
Ms. Harris had applied burn cream and bandages to the burns, but the child had otherwise received no medical attention.
Ms. Tyler investigated Ms. Cunningham's home and found it an appropriate home for the child. She found Ms. Cunningham to be "protective" of T.H. and that she showed no signs of being an inappropriate parent.
Ms. Tyler testified that during her interview, Ms. Cunningham was very upset about the injury to T.H.
Ms. Cunningham told Ms. Tyler that T.H. had been fine at home that morning. Ms. Cunningham told Ms. Tyler that she had bathed
T.H. the previous evening and there were no burns on her legs.1/
Ms. Tyler testified that T.H. told her that another child at True Hope had burned her with a hot glue gun. T.H. did not testify at the hearing.
Ms. Tyler notified the local Child Protection Team and the Jacksonville Sheriff's Office ("JSO"). The JSO sent out a detective and a technician to photograph T.H.'s wounds. According to Ms. Tyler, the photo technician did not arrive until very late on the evening of October 22, which caused
Ms. Cunningham to wait until the next morning to take T.H. to the emergency room at Memorial Hospital for treatment.
The physician at Memorial Hospital confirmed that T.H. has second-degree burns on each thigh. The physician prescribed silvadene cream as a topical treatment for the burns, to be applied twice daily until the burns were healed. No restrictions were placed on T.H.'s activity.
Because her initial investigation did not conclude until late on October 22, Ms. Tyler was unable to visit True Hope on that day. On the following Monday, October 25, 2010, Ms. Tyler, child care licensing counselor Meike Rice, and a JSO detective conducted an onsite investigation at True Hope that included interviews with several employees. Ms. Tyler and
Ms. Rice prepared written reports that were introduced into evidence at the hearing.
Ms. Tyler's report stated that Pastor Givens told her that he picked up T.H. at her home at 9:00 a.m. on October 22.2/ Ms. Cunningham placed the child in the car. T.H. seemed fine
and was not crying. Ms. Cunningham said nothing about an injury.
Pastor Givens told Ms. Tyler that upon arrival at the school, T.H. was helped out of the car by Katrina McGriff, the lead teacher at True Hope.
At the hearing, Ms. McGriff confirmed that she helped
T.H. out of the car. She testified that T.H. was crying because she was hungry, but that she seemed to be fine otherwise. T.H. was wearing skin-tight pants and boots, and gave no appearance of physical distress. Ms. McGriff testified that staff members at True Hope always perform a wellness check on the children as they arrive in the morning, but that this inspection does not include removing the children's clothes.
Ms. McGriff stated that she directed T.H. to wash her hands before eating breakfast. At about 9:30 a.m., after she finished breakfast, T.H. went with her class of eight children to their classroom. Her teacher was Georgia Brown, who was assisted by Lillie Gardner.
Ms. Brown told Ms. Tyler that T.H. showed no signs of distress upon entering the classroom. Ms. Brown told Ms. Tyler that on the morning of October 22, she was the True Hope staff person who performed the wellness check on T.H., and she found nothing amiss with the child's condition.
Ms. Gardner testified that she was with T.H. the entire time the child was at True Hope. She confirmed that T.H. appeared to be fine on the morning of October 22.
Ms. McGriff testified that nothing unusual was apparent with T.H. until about 3:00 p.m. T.H. had played outside with the other children for over an hour. T.H. was very active, going down the slide and playing on the swings. The children were then brought inside to wash their hands before receiving a snack. Ms. McGriff noticed that T.H. was walking on her tiptoes and asked the child if her shoes were bothering her. Ms. McGriff took off T.H.'s boots, but T.H. told her that her feet didn't hurt. Ms. McGriff put the boot back on T.H. She noticed that T.H. was still tiptoeing.
At this point, Ms. McGriff noticed that the material on T.H.'s pants was wet on one side. When Ms. McGriff tried to pull the pants down, she saw "a little red sore. It wasn't bleeding or anything." Ms. McGriff was unable to get the pants all the way down because they were stuck to the wound.
Ms. Gardner testified that T.H. had shown no
discomfort until she wanted to go to the bathroom and found that her pants were stuck to the wound. Ms. Gardner assisted
Ms. McGriff in trying to remove the pants. Ms. Gardner testified that they put some water on the wound, which loosened the pants and enabled them to pull the pants down. Ms. Gardner described
T.H.'s wound as "a scar . . . like a burn." It reminded Ms. Gardner of a burn on her own arm caused by a hot curling iron.
Ms. McGriff asked T.H. what happened. T.H. said, "My sister burned me." Ms. McGriff said, "Well, T.H., you don't have a sister. What happened to you?" Ms. McGriff testified that T.H. "locked up" and would not answer any more questions.
T.H. put her head down and started crying.
Ms. McGriff testified that about ten minutes later, Pastor Givens walked in. After he saw T.H., he called the state abuse hotline. The hotline phone registry indicated that the call came in at 4:01 p.m. Ms. McGriff could hear the conversation on Pastor Givens' speakerphone. The person from the hotline told Pastor Givens to take the child home and someone would be there within 15 minutes. Ms. McGriff buckled
T.H. into the car seat, and Pastor Givens drove T.H. to Ms. Harris' house.
Ms. McGriff testified that she phoned Ms. Cunningham when she saw the injury to T.H., but that Ms. Cunningham did not answer. Ms. McGriff did not leave a voicemail message.
Ms. Cunningham had provided no other emergency number to True
Hope.
In her interview with Ms. Rice, Ms. Harris stated that
Pastor Givens parked his car across the street from her home, put T.H. out of the car, and then sped away. Pastor Givens gave
Ms. Harris no indication that anything was wrong with T.H.
In his interview with Ms. Rice, Pastor Givens confirmed that he did not speak with Ms. Harris when he dropped off T.H. on the evening of October 22.
The evidence established that no one at True Hope provided first aid to T.H. Ms. McGriff testified that she had some training in first aid, and that her training called for her to clean the wound, but that she did not because she was unable to remove T.H.'s pants. This statement conflicts with
Ms. Gardner's testimony that they were able to pull down the pants after putting water on the spot where the pants were stuck to the wound. Ms. Gardner's testimony is credited.
Ms. Gardner testified that no one at True Hope thought the injury serious enough to require immediate medical treatment. Ms. Gardner and Ms. McGriff both testified that T.H. did not appear to be in pain at any point during the day. The problem did not become apparent until the child needed to remove her pants to go to the bathroom.
T.H. provided varying accounts of how she was burned.
She told Ms. Tyler that another child had burned her with a hot glue gun while playing at school. Every employee of True Hope who testified or provided statements to the Department credibly denied that there was a hot glue gun in use at True Hope. No one heard T.H. cry out in pain at any point on October 22.
T.H.'s pants were not burned, meaning the perpetrator was somehow able to remove T.H.'s pants and burn her bare legs with a hot glue gun without being noticed by any adult in the facility.
T.H. told Ms. McGriff that her sister burned her, then cried and refused to say more after Ms. McGriff stated that T.H. did not have a sister. Ms. McGriff and Ms. Gardner testified as to their suspicions about T.H.'s home life. The child had told Ms. McGriff that her mother did not always feed her, and
Ms. McGriff noted that T.H. always appeared famished upon arriving at True Hope. T.H. also told Ms. McGriff about various men sleeping over at her house. Ms. Gardner testified that T.H. had mentioned that she had to sleep on the sofa because her "momma's homey" was in the bed.
The evidence is insufficient to establish where, when and how T.H. came by the burns on her legs. It is entirely incredible that she was burned with a hot glue gun at True Hope. The True Hope facility is only a little more than 1,000 square feet, a setting that makes it highly unlikely that someone could have burned the child's bare legs without being seen or that T.H.'s cry of pain would not be heard.
To its credit, the Department did not seriously contest True Hope's denial that there was a hot glue gun at the facility. The Department did attempt to persuade this tribunal
that the burns must have occurred, somehow, at True Hope during the morning or afternoon of October 22. However, the evidence presented at the hearing, considered in its entirety, established that it is more likely that T.H. came to school with those injuries on the morning of October 22, and that her vigorous play outside aggravated the injuries.
The issue, then, is the adequacy of True Hope's response once its personnel became aware of T.H.'s injury.
There was some variance in the reports as to when the injury was first discovered. Ms. Rice's report indicates that Pastor Givens stated that he noticed the injury at about 2:00 p.m., though Ms. McGriff testified that it was she who brought it to Pastor Givens' attention sometime between 3:00 and 4:00 p.m.
Pastor Givens reported the injuries to the child abuse hotline at 4:01 p.m.
Even if True Hope is credited with promptly reporting the injury to the abuse hotline, personnel at the facility did not provide first aid of any kind to burns that were weeping so badly they caused T.H.'s pants to stick to her leg.
Ms. McGriff's explanation for her failure to provide first aid was unconvincing and at variance with the testimony of
Ms. Gardner. That T.H. was not displaying any pain or
discomfort does not absolve the adults from the duty to
administer first aid.
True Hope made only a cursory attempt to reach T.H.'s mother and inform her of the situation. Ms. McGriff testified as to past difficulties with Ms. Cunningham. Ms. McGriff stated that Ms. Cunningham was "nasty and rude" every time she phoned her about T.H. She testified that she did not leave a voicemail message for Ms. Cunningham because she knew that someone from the Department would soon see T.H. at Ms. Harris' house and address the situation. This is a non sequitur; there was no good reason for failing to leave Ms. Cunningham a message.
True Hope also failed to inform Ms. Harris that T.H. had injuries that required first aid. The evidence established that Pastor Givens simply dropped off the child outside of
Ms. Harris' residence and drove away. It was left to Ms. Harris to discover T.H.'s burns and attend to them.
It is noted that neither Ms. Tyler, nor
Ms. Cunningham, nor the JSO detective or photo technician viewed T.H.'s injuries with such alarm that they rushed her to the emergency room on the night of October 22.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2011).
The Department has the burden of establishing the
grounds for discipline against Respondent's license by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Stern
& Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Coke v. Dep't of Child. & Fam. Servs., 704 So. 2d 726 (Fla. 5th DCA 1998).
In Evans Packing Co. v. Dep't of Agric. and Consumer
Servs., 550 So. 2d 112, 116, n.5 (Fla. 1st DCA 1989), the Court defined clear and convincing evidence as follows:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.
2d 797, 800 (Fla. 4th DCA 1983).
Judge Sharp, in her dissenting opinion in Walker v.
Dep't of Bus. and Prof'l Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998) (Sharp, J., dissenting), reviewed recent pronouncements on clear and convincing evidence:
[C]lear and convincing evidence requires more proof than preponderance of evidence, but less than beyond a reasonable doubt. In re Inquiry Concerning a Judge re Graziano, 696 So. 2d 744 (Fla. 1997). It is an intermediate level of proof that entails both qualitative and quantative [sic] elements. In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert.
denied, 516 U.S. 1051, 116 S. Ct. 719, 133
L. Ed. 2d 672 (1996). The sum total of evidence must be sufficient to convince the trier of fact without any hesitancy. Id. It must produce in the mind of the factfinder a firm belief or conviction as to the truth of the allegations sought to be established. Inquiry Concerning Davey, 645 So. 2d 398, 404 (Fla. 1994).
At all times material to this case, Respondent was a provider of child care, pursuant to section 402.302, Florida Statutes (2010), which provides the following relevant definition:
"Child care" means the care, protection, and supervision of a child, for a period of less than 24 hours a day on a regular basis, which supplements parental care, enrichment, and health supervision for the child, in accordance with his or her individual needs, and for which a payment, fee, or grant is made for care.
* * *
"Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for
profit....
Count I of the Complaint alleged that True Hope inadequately supervised T.H. because she had second-degree burns and the staff did not provide first aid or obtain medical attention. Count I also alleged that Pastor Givens took T.H. home without notifying T.H.'s adult guardian of the child's
injury. The Department proved these elements of the allegations of Count I by clear and convincing evidence.
However, Count I also alleged that True Hope staff was unable to account for how the child was injured, insinuating that the injury must have happened while the child was under the supervision of True Hope personnel. The Department failed to establish this element of Count I by clear and convincing evidence.
The Department alleged that the violation found for Count I of the Complaint was a Class 1 violation pursuant to Florida Administrative Code Rule 65C-22.001(5)(a), which provides as follows, in relevant part:
Direct supervision means watching and directing children's activities within the same room or designated outdoor play area, and responding to the needs of each child. Child care personnel at a facility must be assigned to provide direct supervision to a specific group of children, and be present with that group of children at all times....
CF-FSP Form 5316, adopted by reference in Florida Administrative Code Rule 65C-22.010(1)(d)1., sets forth the classifications for the various forms a violation of rule 65C- 22.001(5)(a) may take. The only relevant provision under which the violations alleged by the Complaint could be considered a Class 1 violation provides that the facility's inadequate supervision "posed an imminent threat to a child, or could or
did result in death or serious harm to the health, safety or well-being of a child."
As noted above, the Department failed to prove the most serious allegation of Count I, that the child was injured at True Hope. Personnel at True Hope nonetheless failed to respond adequately to the needs of T.H. once they became aware of her injuries, and failed to notify T.H.'s mother or
Ms. Harris of T.H.'s injuries. It is arguable whether True Hope's actions could have resulted in "serious harm" to T.H.'s health, safety or well-being, but when considering disciplinary action for a proven violation, the undersigned concludes that any doubt should be resolved in favor of the child's safety.
Florida Administrative Code Rule 65C-22.010(2)(e)1. provides that a first or second violation of a Class 1 standard should result in a fine of not less than $100 nor more than
$500, as well as other disciplnary action that the Department deems appropriate. Under all the circumstances presented in this case, the Department should assess a fine of $250.00 for the violation proven in Count I of the Complaint.
Count IV of the Complaint stated that True Hope failed to immediately notify the custodial parents or legal guardians of T.H. regarding the child's serious illness, accident, injury or emergency on October 22, 2010. The evidence established that staff members at True Hope observed the child with burns, that
True Hope made an ineffectual and half-hearted attempt to notify the child's mother, and that the adult who received the child at home was not notified of the injury.
The Department has established the allegations of Count IV by clear and convincing evidence.
For this Class 2 violation, the Department should assess a fine of $50.00, pursuant to Florida Administrative Code Rules 65C-22.004(2) and 65C-22.010(2)(e)2.b.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order imposing a fine of $300.00 upon True Hope and Deliverance Ministries, Inc., d/b/a True Hope Developmental Academy.
DONE AND ENTERED this 13th day of January, 2012, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Division of Administrative Hearings this 13th day of January, 2012.
1/ Ms. Cunningham's hearsay statements are not sufficient to sustain a finding of fact and do not serve to supplement other competent substantial evidence. § 120.57(1)(c), Fla. Stat. The Department subpoenaed Ms. Cunningham to testify at the final hearing, but she failed to appear.
2/ Pastor Givens was present at the hearing but did not testify.
David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway
True Hope and Deliverance Ministries, Inc., d/b/a True Hope Developmental Academy
T. A. Delegal, Esquire Delegal Law Offices, P.A.
Gregory D. Venz, Agency Clerk Department of Children and Families 1317 Winewood Boulevard
Drew Parker, General Counsel Department of Children and Families 1317 Winewood Boulevard
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.
