STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 98-1514

)

ANDROMEDA PRESCHOOL, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Stephen F. Dean, Administrative Law Judge for the Division of Administrative Hearings, held a final hearing in the above-styled case on June 9, 1998, in Jacksonville, Duval County, Florida.

APPEARANCES

For Petitioner: Roger L. D. Williams, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

For Respondent: S. Grier Wells, Esquire

Suite 3100 Barnett Center

50 North Laura Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The Respondent, Andromeda Preschool (hereafter, Andromeda) seeks a formal hearing on the proposed administrative fine assessed by the Department. The only issue is whether Andromeda knew or had reasonable cause to suspect that an incident of abuse

had occurred, and violated Section 415.504(1), Florida Statutes, by failing to report timely the alleged incident.

PRELIMINARY STATEMENT

The Department through its administrative complaint filed against the Respondent seeks to impose an administrative fine against Andromeda. The Respondent requested a formal hearing pursuant to Section 120.57, Florida Statutes, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing in the case. The case was noticed for hearing and heard as noticed.

The Administrative Hearing was held on June 9, 1998. The Petitioner called its investigators, Paul Campanale and Vivian Farley, and its licensing supervisor of day-care facilities, Maurice Murray, to testify and introduced Petitioner's Exhibits 1,2, and 3, which were received into evidence. The Respondent called Adrain Campbell and Lori Studenski to testify and introduced Respondent's Exhibit 1, which was received into evidence.

At the conclusion of the hearing, the parties agreed to submit proposed findings. The Respondent submitted proposed findings that were read and considered. The Petitioner filed a letter adopting the proposed findings of the Respondent, and attacking only portions of Respondent's argument. Petitioner's letter was read and considered.

FINDINGS OF FACT

1. It is uncontested that Andromeda, as a licensed day care facility, is subject to the reporting requirements of Section 415.504, Florida Statutes.

2. On January 16, 1998, a Friday, between 3:00 and

   
   

   4:00 p.m., M.H. overheard E.H., an 8 year-old boy at Andromeda, telling at least two other boys that S.R., a 17 year-old male employee of the Andromeda, had wanted to perform oral sex on E.H. M.H., who is the sister of S.R. and also an employee of the school, reported the conversation she overheard to J.L., another employee of Andromeda.

3. J.L. immediately reported the overheard conversation to Adrain Campbell, a co-director of Andromeda. Both M.H. and J.L. reported the conversation because of concern about the vulgar and graphic language used by E.H., who had exhibited a history of using vulgar language.

4. Ms. Campbell conducted interviews with M.H., E.H., and the two boys with whom he was talking. E.H. told Ms. Campbell that S.R. had told him that S.R. wanted to perform oral sex on him. The two friends of E.H. reported to Ms. Campbell what E.H. said, but reported the conversation about oral sex between E.H. and S.R. took place while S.R. was baby-sitting E.H. M.H. reported to Ms. Campbell that S.R. had never baby-sat for E.H.

5. Following the interview with the younger children, Ms. Campbell interviewed S.R. S.R. vehemently denied the accusations and appeared to be visibly shaken.

6. Ms. Campbell sent a letter to the parents of E.H. on Friday, January 16, 1998, requesting a meeting with the mother of

   E.H. on Monday morning, January 19, 1998. The letter was hand delivered to the father of E.H. between 4:00 p.m. and 4:30 p.m. on January 16, 1998. The letter set out the essence of the reported conversation, and expressed Ms. Campbell's concern for the type of language and conversation used by E.H. Ms. Campbell did not consider the reported conversation as an allegation of misconduct by S.R., but an incident of vulgar language use by E.H.

7. On Monday, January 19, 1998, S.H., the mother of E.H., met with Lori Studenski, co-director of Andromeda, and Margie Smith, an employee of Andromeda. The mother advised Smith and Studenski that she had questioned E.H. the preceding evening about allegations reported by Ms. Campbell, and E.H. informed her that S.R. had “touched his privates.” This alleged touching had not previously been disclosed to Andromeda. Smith and Studenski advised the mother that they believed S.R.'s denials, and that they felt E.H. was being influenced by older children. S.H. indicated she would question E.H. further. Both E.H. and his sister attended Andromeda on January 19, 1998, according to their normal schedule.

8. On Tuesday morning, January 20, 1998, another meeting was held between Ms. Studenski and S.H., the allegedly abused child's mother. S.H. reported to Studenski that E.H. was again

   questioned by S.H. and her husband on Monday evening, January 19, 1998. E.H. related to them how S.R. had performed oral sex on

   E.H. twice in the kitchen at Andromeda with E.H. shouting, “No, no.”

9. This was the third version of events reported by E.H.

   
   

10. S.H. advised Ms. Studenski that she would be speaking with the pastor of their church. Again, E.H. and his sister both attended Andromeda as normal on Tuesday, January 20, 1998.

11. Ms. Campbell and Ms. Studenski doubted that the alleged incident could have occurred in the kitchen as described by E.H. because the kitchen at Andromeda is very open. It has a large, open window that looks into the children’s game room/dining area. Further, the doorway into the kitchen is adjacent to that window and has a split door, the top half of which is approximately the same height as the open window, and all of the classrooms at Andromeda have glass panels in the doors and windows without shades.

12. Paul Campanale, an employee of the Department of Children and Family Services whose duties include investigating allegations of child abuse, testified. His office received a report from the Central Abuse Reporting Hotline in Tallahassee at approximately 3:39 p.m. on January 20, 1998, and Campanale began his investigation at 4:42 p.m. on the same date. The report of abuse upon which Mr. Campanale based his investigation was that

    S.R. had performed oral sex on E.H. before Christmas 1997.

    Mr. Campanale testified that he had no record of when the incident was first reported, either to the parents of E.H. or to Andromeda. This allegation by E.H. was not related to the staff at Andromeda until January 20, 1998.

13. By telephone, Mr. Campanale spoke with Margie Smith and Lori Studenski of Andromeda. Campanale was advised that the alleged incident was not reported earlier by Andromeda because Andromeda was conducting an internal investigation. He interviewed E.H. around noon on January 21, 1998. E.H. reported that he was in the kitchen at Andromeda around the New Year washing dishes, when S.R. performed oral sex on him.

14. Following his interview with E.H., Mr. Campanale concluded that there were “some indicators” of an incident of abuse based solely on his interview with E.H. Mr. Campanale did not conduct any further follow-up investigation or interviews with any of the Andromeda personnel or S.R., nor did he visit the facilities at Andromeda.

15. Vivian Farley and Maurice W. Murray, Jr., also testified as witnesses for the Department. Mr. Murray is the day care facility supervisor for the Department covering an area of five counties. Ms. Farley is involved with the licensing of day care facilities and her duties include investigating complaints of noncompliance with reporting requirements. Mr. Campanale filed a complaint regarding the failure to report the incident with the Petitioner on February 19, 1998.

16. Mr. Murray, as supervisor, assigned the responsibility of investigating the non-reporting to Ms. Farley.

17. Although a variety of resources and information is available to day care centers, there are no specific guidelines promulgated by the Department that defines reasonable cause to suspect abuse. Ms. Farley indicated that any report of an incident by a child, no matter how far-fetched, should be reported.

18. Ms. Farley was the only witness testifying on behalf of the Department who was familiar with the facilities at Andromeda. She concurred in the testimony given by Ms. Campbell and

    Ms. Studenski as to the openness of the kitchen area where the alleged incident purportedly occurred, as well as the visibility features of the classrooms at Andromeda.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this hearing pursuant to Chapter 120.57, Florida Statutes, and Chapter 415.504(1), Florida Statutes.

20. Petitioner has assessed an administrative fine for Respondent's alleged violation of Section 415.504(1), Florida Statutes.

21. Section 415.504(1), Florida Statutes, provides in pertinent part that a facility, such as Andromeda, which “...knows or has reasonable cause to suspect, that a child is an

    abused or neglected child...” report such knowledge or suspicion to the Department.

22. The burden of proof to establish such knowledge or reasonable suspicion by Andromeda is on the Department.

23. The statute does not require Andromeda to report all reports of alleged abuse. To the contrary, the statute requires "reasonable cause to suspect" abuse prior to initiating a report.

24. The facts reveal that personnel at Andromeda became involved in this case because of E.H.'s vulgar and coarse language. The initial "facts" as reported to Andromeda's staff were that E.H. had stated to fellow students that S.R. had told

    E.H. that S.R. wanted to "suck E.H.'s dick." Andromeda's very cursory and brief inquiry into the "facts" did not establish an incident of abuse. E.H. had a history of using coarse and vulgar language at school. There was no physical evidence of abuse. There was no "emotional" evidence of abuse. S.R., who is also a minor, denied having made such a statement to E.H. Andromeda reported the incident to E.H.'s parents in the context of E.H. using inappropriate language at school.

25. The additional facts developed concerning S.R. allegedly having molested E.H. were developed by the parents over the ensuing days and reported by them to Andromeda. On

    January 19, 1998, E.H.'s mother reported that E.H. had said S.R. touched his privates. On January 20, 1998, E.H.'s mother reported to Andromeda that E.H. had said S.R. had performed oral

    sex on him. The essentials of the incident had changed from the initial report of vulgar conversation on January 16, 1998.

26. The purpose of the statute was to require daycare, school, and emergency room personnel to report incidents of suspected abuse particularly by parents or guardians. The statute was not particularly intended to put institutions in the position of reporting on themselves, which is why the wording of the statute and the forms used in the reporting process do not fit this situation well. However, the statute does require reporting when one knows or has reasonable cause to suspect a child is being abused by school staff.

    
    

27. In this instance, the parents reported the child's allegations of sexual contact back to the school. It was the parents who had the first hand knowledge of the allegations. The parents were in the better position to assess the "reasonableness" of their son's story. The reports of alleged fondling and oral sex by S.R. were "hearsay" to the staff at Andromeda.

28. The hearsay allegations in the possession of Andromeda do not rise to the level of a reasonable suspicion when viewed in light of the staff's knowledge of the accuser, the layout of the facility, the alleged perpetrator, and the alleged perpetrator's denial.

29. The Department’s conclusion that “some indicators” of an incident of abuse had occurred based on an interview with E.H. is distinguishable on the fact of that interview alone. The Department's investigator had a first hand report of alleged molestation. Andromeda did not.

30. The Department has not demonstrated that Andromeda had reasonable cause to conclude on January 16, 1998, that E.H. was the victim of abuse when Andromeda reported its concerns to the child's parents. To the contrary, the facts show that Andromeda did not have reasonable cause on January 16, when it turned the matter over to the child's parents. The second-hand information reported to Andromeda by the parents did not establish reasonable cause in Andromeda's staff. The statutory pre-requisite for Andromeda to report suspected abuse was not shown to exist. The statute was not violated and the administrative fine should not be imposed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby:

RECOMMENDED:

That a final order be entered finding that the allegations of the administrative complaint not proven; that Section 415.504(1), Florida Statutes, was not violated; and that the imposition of a civil penalty in the amount of $250.00 be rescinded.

DONE AND ENTERED this 21st day of August, 1998, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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

Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1998.

COPIES FURNISHED:

S. Grier Wells, Esquire 3100 Barnett Center

50 North Laura Street Jacksonville, Florida 32202

Roger L.D. Williams, Esquire Department of Children

and Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, 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: 98-001514

Orders for Case No: 98-001514