STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

HIGHLAND CHRISTIAN ACADEMY,

Respondent.

/

Case No. 18-2314

RECOMMENDED ORDER

Pursuant to notice this case was heard on June 13, 2018, in Orlando, Florida, before J. D. Parrish, an Administrative Law Judge with the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Brian Christopher Meola, Esquire

Department of Children and Families Suite S-1129

400 West Robinson Street Orlando, Florida 32801

For Respondent: Marisha Williams, pro se

Highland Christian Academy

441 South Highland Avenue Apopka, Florida 32703

STATEMENT OF THE ISSUE

Whether the Respondent, Highland Christian Academy (HCA), committed a violation of child care licensing law and, as a result, must lose its designation as a Gold Seal Provider.

PRELIMINARY STATEMENT

On April 3, 2018, the Petitioner, Department of Children and Families (DCF), issued an Administrative Complaint that alleged HCA failed to meet standards applicable to child care providers and should lose its designation as a Gold Seal facility. HCA timely contested the proposed action and the case was referred to DOAH for formal proceedings on May 8, 2018.

At the hearing DCF presented testimony from three witnesses.

Petitioner’s Exhibits A through E were admitted into evidence. HCA presented comments from two persons.

A transcript of the case was not filed. The parties filed proposed recommended orders that have been considered in the preparation of this Order.

FINDINGS OF FACT

1. DCF is the state agency charged with the responsibility of regulating child care facilities operating in the State of Florida.

2. At all times material to the allegations of this case, HCA operated a child care facility designated as a Gold Seal Provider by DCF. HCA is exempt from licensing standards as a religious provider. However, as a designated Gold Seal facility it must comply with licensing standards to retain its designation.

   
   

3. In this case DCF alleged HCA failed to timely report an incident of possible child abuse as required by Florida law. All licensed child care providers must immediately report incidents of suspected abuse without delay. Any unexplained injury to a child attending a child care facility must be reported and investigated.

4. Pertinent to this case was an unexplained injury to a minor child who attended HCA on or about January 29, 2018. Mrs. M. (the minor child’s mother whose name is intentionally omitted) noticed some marks on her child when she picked the

   child up from daycare. Her initial inquiry regarding the marks was dismissed as a probable play yard injury.

5. That evening while she was bathing the child Mrs. M. noticed distinct marks and bruises that she believed looked like the child had been grabbed. Mrs. M. photographed the marks and bruises to memorialize the locations and severity of the bruises. The bruises could have easily been the result of a hand grabbing the child as there were five distinct marks that would align with finger imprints.

6. The next day, January 30, 2018, Mrs. M. approached the HCA school director to show her the photographs of the child and to further inquire as to how the marks were made. It was logical for Mrs. M. to question how her child could have received the marks.

   
   

7. Instead of reporting the unexplained marks to the state (DCF) as required by law, the school director asked Mrs. M. to allow her additional time to investigate the matter.

8. Later in the week the school director acknowledged that the marks/bruises should have been reported and that the child’s teacher failed to report the incident that caused the injuries.

9. Eventually the matter was reported to DCF and an investigator met with Mrs. M. to review the facts of the incident. As several days had passed, no conclusion could be reached as to how the marks/bruises were made. The investigator did verify that the child had sustained an injury that should have been reported.

10. As a Gold Seal child care provider, HCA is subject to licensing inspections to ensure compliance with all DCF regulations. In this case a licensing counselor was advised

    of a possible licensing violation regarding the incident with Mrs. M.’s child. After investigating the matter, the DCF counselor determined HCA had failed to timely report the incident of suspected child abuse. According to the licensing counselor, Florida Administrative Code Rule 65C-22.010 requires suspected child abuse to be reported to the hotline without delay. The failure to do so constitutes a Class I Violation of Child Care Licensing Standards.

    
    

11. HCA terminated the employment of the school’s director who had failed to timely contact the hotline regarding suspected abuse. Additionally, HCA terminated the child’s teacher. Next, HCA took steps to educate all staff of the child care facility as to the reporting requirements for incidents related to suspected abuse.

12. HCA maintains that it took all action reasonably available to assure it would comply with all licensing standards. Further, HCA asserts that the loss of the Gold Seal designation adversely impacts its families who might not be able to obtain assistance funding only available to Gold Seal-designated facilities.

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2017).

14. In this case, DCF bears the burden of proof to establish by clear and convincing evidence that HCA committed the violation alleged. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987);

    and Pou v. Dep’t of Ins. & Treasurer, 707 So. 2d 941 (Fla. 3d DCA

    
    

    1998).

    
    

15. “Clear and convincing” evidence was described by the court in Evans Packing Company v. Department of Agriculture and

    
    

    Consumer Services, 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989), as

    
    

    follows:

    
    

    [C]lear and convincing 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 or 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).

    
    

16. Section 402.281, Florida Statutes (2017), provides in pertinent part:

    Gold Seal Quality Care program.—

    
    

    (1)(a) There is established within the department the Gold Seal Quality Care Program.

    
    

    (b) A child care facility, large family child care home, or family day care home that is accredited by an accrediting association approved by the department under subsection

    (3) and meets all other requirements shall, upon application to the department, receive a separate “Gold Seal Quality Care” designation.

    
    

    (2) The department shall adopt rules establishing Gold Seal Quality Care accreditation standards based on the applicable accrediting standards of the National Association for the Education of Young Children (NAEYC), the National Association of Family Child Care, and the National Early Childhood Program Accreditation Commission.

    
    

    (3)(a) In order to be approved by the department for participation in the Gold Seal Quality Care program, an accrediting association must apply to the department and demonstrate that it:

    
    

    1. Is a recognized accrediting association.

       
       

    2. Has accrediting standards that substantially meet or exceed the Gold Seal Quality Care standards adopted by the department under subsection (2).

    
    

    (b) In approving accrediting associations, the department shall consult with the Department of Education, the Florida Head Start Directors Association, the Florida Association of Child Care Management, the Florida Family Child Care Home Association, the Florida Children’s Forum, the Florida Association for the Education of the Young, the Child Development Education Alliance, the Florida Association of Academic Nonpublic Schools, the Association of Early Learning Coalitions, providers receiving exemptions under s. 402.316, and parents.

    
    

    1. In order to obtain and maintain a designation as a Gold Seal Quality Care provider, a child care facility, large family child care home, or family day care home must meet the following additional criteria:

       
       

       1. The child care provider must not have had any class I violations, as defined by rule, within the 2 years preceding its application for designation as a Gold Seal Quality Care provider. Commission of a class I violation shall be grounds for termination of the designation as a Gold Seal Quality Care provider until the provider has no class I violations for a period of 2 years.

          
          

17. Section 39.201, Florida Statutes (2017), provides:

    
    

    Mandatory reports of child abuse, abandonment, or neglect; mandatory reports of death; central abuse hotline.

    
    

    (1)(a) Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).

    
    

    1. Any person who knows, or who has reasonable cause to suspect, that a child is abused by an adult other than a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).

    
    

    * * *

    
    

    (2)(a) Each report of known or suspected child abuse, abandonment, or neglect by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare as defined in this chapter, except those solely under s. 827.04(3), and each report that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall be made immediately to the department’s central abuse hotline. Such reports may be made on the single statewide toll-free telephone number or via fax, web-based chat, or web-based report. Personnel at the department’s central abuse hotline shall determine if the report received meets the

    
    

    statutory definition of child abuse, abandonment, or neglect. Any report meeting one of these definitions shall be accepted for the protective investigation pursuant to part III of this chapter. Any call received from a parent or legal custodian seeking assistance for himself or herself which does not meet the criteria for being a report of child abuse, abandonment, or neglect may be accepted by the hotline for response to ameliorate a potential future risk of harm to a child. If it is determined by a child welfare professional that a need for community services exists, the department shall refer the parent or legal custodian for appropriate voluntary community services.

    
    

    (b) Each report of known or suspected child abuse by an adult other than a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, shall be made immediately to the department’s central abuse hotline. Such reports may be made on the single statewide toll-free telephone number or via fax, web-based chat, or web-based report. Such reports or calls shall be immediately electronically transferred to the appropriate county sheriff’s office by the central abuse hotline.

    
    

18. Rule 65C-22.010 provides, in part: Enforcement.

    This rule establishes the grounds under which the Department shall issue an administrative fine, deny, suspend, revoke a license or registration or place a licensee or registrant on probation status as well as uniform system of procedures to impose disciplinary sanctions.

    
    

    1. Definitions.

       
       

       1. “Day” means a weekday, excluding weekends and holidays.

          
          

       2. “Probation” is a licensing status indicating the license is in jeopardy of being revoked or not renewed due to violations of licensing standards. Probation may require the licensee to comply with specific conditions intended to ensure that the licensee comes into and maintains compliance with licensing standards.

          Examples of such conditions are: a deadline to remedy an existing violation, a specified period during which compliance with licensing standards must be strictly maintained; and specified conditions under which the facility must operate during the probationary period.

          
          

       3. “Standards” are requirements for the operation of a licensed facility provided in statute or in rule.

          
          

       4. “Technical Assistance” means a Department offer of assistance to a licensee or registrant to correct the statutory or regulatory violations.

          
          

       5. “Violation” means noncompliance with a licensing standard as described in an inspection report resulting from an inspection under Section 402.311, F.S., as follows with regard to Class I, Class II, and Class III Violations.

       
       

       1. “Class I Violation” is an incident of noncompliance with a Class I standard as described on CF-FSP Form 5316, October 2017. Child Care Facility Standards Classification Summary, which is incorporated by reference. A copy of the CF-FSP Form 5316 may be obtained from the Department’s website at www.myflfamilies.com/childcare or from the following link: http://www.flrules.org/ Gateway/reference.asp?No=Ref-08739. However, any violation of a Class II standard that

       
       

       results in death

       or serious harm to a child shall escalate to a Class I violation. The effective date

       of a termination of a provider’s Gold Seal Quality Care designation is the date of the Department’s written notification to the provider. However, any violation of a Class II standard that results in death or serious harm to a child shall escalate to a

       Class I violation. Class I violations are the most serious in nature.

       
       

19. In this case DCF has established by clear and convincing evidence HCA’s personnel failed to timely report the injuries sustained by the minor child as required by Florida law. Mrs. M. should have been given a full report at the time the child was picked up stating the cause of the marks/bruises and, since she was not, it was reasonable for her to question how the child received the injuries. It is unacceptable to return a child to its parent with unexplained injuries from a daycare experience. The matter should have been immediately referred to the hotline for investigation and resolution. The marks/bruises were consistent with a hand forcefully grabbing the child. Upon seeing the photographs, HCA’s director should have immediately notified the hotline of suspected abuse regarding the child.

20. Class I violations are the most serious in nature. A facility that receives the Gold Seal designation is held to the highest standard. In this case, HCA failed to meet the Gold Seal standard because at least two of its employees (the child’s teacher and the director) failed to comply with the requirements

of Florida law. Neither notified DCF timely of the child’s unexplained injuries. Neither provided a satisfactory explanation of the child’s injuries to the mother.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order revoking the Respondent’s Gold Seal designation.

DONE AND ENTERED this 30th day of July, 2018, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2018.

COPIES FURNISHED:

Brian Christopher Meola, Esquire Department of Children and Families Suite S-1129

400 West Robinson Street Orlando, Florida 32801 (eServed)

Manisha Williams, Office Manager Highland Christian Academy

441 South Highland Avenue Apopka, Florida 32703

Lacey Kantor, Esquire

Department of Children and Families Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Mike Carroll, Secretary

Department of Children and Families Building 2, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

John Jackson, Acting General Counsel Department of Children and Families Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

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: 18-002314

Orders for Case No: 18-002314