STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 00-1865

)

ANNIE P. SMITH, d/b/a SMITH )

FAMILY DAY CARE HOME, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on November 7, 2000, Sebring, Florida.

APPEARANCES

For Petitioner: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

For Respondent: Sidney M. Crawford, Esquire

Sidney M. Crawford, P.A. Post Box 5947

Lakeland, Florida 33807 STATEMENT OF THE ISSUE

Should Respondent’s annual renewal of her family day care home registration be denied?

PRELIMINARY STATEMENT

This cause was initiated by the Department of Children and Family Services (Department) by serving an Administrative Complaint on Respondent on or about December 29, 1999. On January 5, 2000, Respondent's attorney filed a Notice of Appearance, Request for Administrative Hearing, and Motion to Dismiss. Apparently, the Department did not receive this pleading. The initial Administrative Complaint was not filed with the Division of Administrative Hearings. Subsequently, the Department amended the initial Administrative Complaint and served a copy on Respondent.

By this First Amended Administrative Complaint dated April 28, 2000, and filed with the Division on May 3, 2000, the Department is attempting to deny Respondent’s annual family day care home registration. As grounds therefor the Department alleges that: (a) Respondent failed to provide satisfactory proof of screening and background checks in accordance with Section 402.313(1)(a)5., Florida Statutes; (b) Respondent failed to protect and maintain the safety of the child D.W.H. while the child was in Respondent’s care; and (c) Respondent failed to protect and maintain the safety of the child, K.L.B., while the child was in Respondent’s care. By letter dated May 2, 2000, the Department referred this matter to the Division for the assignment of an Administrative Law

Judge and for the conduct of a formal hearing. At the hearing, the Department presented the testimony of Karen Babcock, Tamera Washington, Ray Starr, and Debra Metcalf. The Department’s Exhibits numbered 1 through 8 were admitted in evidence. Respondent testified in her own behalf and presented the testimony of Carol Williams, Leotis T. McNeill, Tracey Davis, Brenda Powell, and Maranda Mack. Respondent did not offer any documentary evidence. Section 402.313, Florida Statutes, was officially recognized.

A Transcript of this proceeding was filed with the Division on November 27, 2000. Respondent’s unopposed motion for extension of time to file proposed recommended orders was granted with the understanding that any time constraint imposed under Rule 28-106.216(1), Florida Administrative Code, was waived in accordance with Rule 28-106.216(2), Florida Administrative Code. The parties timely filed their Proposed Recommended Orders under the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida with whom a family day care home must register annually if that family day care home is not required to be licensed by

   the Department or the county within which the family day care home is located.

2. Annie P. Smith owns and operates Smith Family Day Care Home, which is located in Highlands County, Florida. Respondent is not required to be licensed by the Department or Highlands County but must register annually with the Department.

3. On or about October 28, 1999, Respondent applied to renew her annual family day care home registration.

4. On or about November 10, 1999, the Department screened Florida Abuse Hotline Information System (FAHIS) which revealed report number 1998-094609, an alleged report of child abuse or neglect filed against Respondent.

5. FAHIS report number 1998-094609 alleges that while the child D.W.H., aged 6 months, was under the care of Respondent the child received a large bruise on his upper, inside left thigh. The report characterizes Respondent's role as an alleged perpetrator of child abuse.

6. On or about March 29, 2000, the Department received FAHIS report number 2000-050228, alleging that the child,

   K.L.B. was picked up from Respondent's day family care home with a broken arm.

7. By an Amended Administrative Complaint dated April 28, 2000, the Department advised Respondent that it was denying her application for annual renewal of her family day care home registration.

8. The Department's denial of Respondent's application for renewal of her registration for her family day care home was based on Respondent's: (a) failure to provide satisfactory proof of screening in accordance with Section 402.313(1)(a)5., Florida Statutes; (b) failure to protect and maintain the safety of the child, D.W.H. while the child was in her care; and (c) failure to protect and maintain the safety of the child, K.L.B. while the child was in her care.

9. The Department presented no evidence concerning FAHIS report number 2000-050228 or the alleged abuse of the child,

   K.L.B. In fact, the Department announced at the hearing that it was dropping Count III of the Administrative Complaint concerning the alleged abuse of the child, K.L.B.

10. After picking D.W.H. up from Respondent's family day care home on August 25, 1998, T.W., the child's mother, transported the child to Heartland Pediatrics of Avon Park for a scheduled appointment with Dr. Deshipande for the child's regular check-up. During the child's examination, Dr. Deshipande, discovered bruises on the inner thigh of the child's left leg.

11. Dr. Deshipande described the bruises as a "large area on (l) inner thigh of bruising in various stages -- dark purple to pink. No tenderness. No other bruises elsewhere." (Emphasis furnished).

12. Dr. Deshipande suspected possible child abuse and instructed one of his staff to notify the Department's abuse hotline. Subsequently, the Department conducted an investigation into the allegations of abuse.

13. Ray Starr, a former Child Protective Investigator (CPI), with the Department, was the person primarily responsible for the Department's investigation and preparation of the abuse report.

14. Starr's testimony that he contacted Respondent during his investigation by telephone concerning the alleged abuse is inconsistent with the abuse report and with Respondent's testimony. The abuse report indicates that Starr talked with Respondent in person concerning the alleged abuse.

15. Respondent testified that neither Starr nor anyone else from the Department talked to her by telephone or in person concerning the alleged abuse during the time of the investigation.

16. After discussing the background of the child's parents with local law enforcement and Department personnel, including one Department employee who was a "good friend" of

    the child's father, Starr determined that the child's parents were not responsible for the bruises.

17. Without any further investigation (except possibly one telephone call to Respondent) Starr determined that the bruises were either the direct result of Respondent's action with the child or her inattention to the child which resulted in the bruises by whatever means. Starr made no effort to discuss Respondent's reputation as a caregiver with any of Respondent's present or past clients or to determine if there had been any problems with Respondent's care of other children.

18. Based on the testimony of several of Respondent's present and past clients, Respondent enjoys a reputation of being an excellent caregiver for children, particularly younger children.

19. On August 25, 1998, the child's mother, while giving the child's medical history to Dr. Deshipande, indicated that the child had been going to Respondent's family day care home for a period of 12 days and that bruising had been noted once before. However, at the hearing the child's mother testified that she could not recall how long the child went to Respondent's family day care home and that there had been no problem with the child's suffering any bruising at

    Respondent's day care home prior to the day of the alleged incident.

20. The child's mother could not recall what time she left the child at Respondent's home or picked him up from Respondent's home on the day of the alleged incident or any other day.

21. The child's mother could not recall virtually anything about the incident other than her assertion that she checked her child thoroughly before she took him anywhere and checked him thoroughly after picking him up, which she described as "a mother's thing." Based on this assertion, the mother concluded that the child must have been bruised between the time she left him in Respondent's care on August 25, 1998, and the time she picked him up from Respondent's day care home on August 25, 1998.

22. Karen Babcock, a Licensed Practical Nurse, employed by Heartland Pediatrics of Avon Park saw the bruises on the child on August 25, 1998, while he was being examined by Dr. Deshipande. Babcock testified that although she was not present when the photographs were taken by a Department employee on August 26, 1998, the bruises on the child's leg as shown by the photographs depict a fair and accurate representation of the bruises as they appeared on August 25, 1998.

23. Ray Starr was present when the photographs were taken on August 26, 1998, and testified that the bruises on the child's leg as shown by the photographs depict a fair and accurate representation of the bruises as they appeared on August 26,1998.

24. Dr. Deshipande did not testify at the hearing and, other than his description of the bruises, did not state in his notes an opinion as to when he considered the bruises may have occurred. The fact that he noted bruises "in various stages" indicates that the bruises occurred at various times. Nothing in Ray Starr's testimony or the abuse report indicates that Ray Starr talked with Dr. Deshipande concerning the timing of the bruising. Likewise, none of the other witnesses talked with Dr. Deshipande concerning the timing of the bruising. Dr. Deshipande's description of child's bruises does not describe bruises that are alleged to have occurred earlier in the day on August 25, 1998, during the time the child was in the care of the Respondent. Likewise, the photographs, when viewed in light of Dr. Deshipande's description of the bruising as it appeared to him on August 25, 1998, do not depict bruising that is alleged to have occurred earlier in the day on August 25, 1998, during the time the child was under the care of Respondent. Therefore, although it is clear that the child was bruised, it is not at

    all clear that the child was bruised during the time he was under the care of Respondent on August 25, 1998, either by Respondent directly or as a result of Respondent's inattention, notwithstanding the testimony of the child's mother to the contrary, which I find lacks credibility.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

26. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981). The Department has the burden of proof in this proceeding. To meet its burden, the Department must establish facts upon which its allegations are based by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern Company, 670 So. 2d 932, 933 (Fla. 1996); Coke v. Department of Children and Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998); and Section 120.57(1)(j), Florida Statutes (1999).

27. Subsections 402.313(1)(a)5.,(b) and (c), Florida Statutes, provide as follows:

    1. Family day care homes shall be licensed under this act if they are

       presently being licensed under an existing county licensing ordinance, if they are participating in the subsidized child care program, or if the board of county commissioners passes a resolution that family day care homes be licensed. If no county authority exists for the licensing of a family day care home, the department shall have the authority to license family day care homes under contract for the purchase-of-service system in the subsidized care program

       1. If not subject to license, family day

          care homes shall register annually with the department, providing the following information:

          * * *

          5. Proof of screening and background checks.

          * * *

       2. The department or local licensing agency may impose an administrative fine, not to exceed $100, for failure to comply with licensure or registration requirements.

       3. A family day care home not participating in the subsidized child care program may volunteer to be licensed under the provision of this act.

       
       

       The Department concedes that Respondent's family day care home was not required to be licensed by the Department or Highlands County at any time relevant to this proceeding.

28. Subsections 39.201(4) and (6), Florida Statutes, provide in pertinent part as follows:

    (4) The department shall establish and maintain a central abuse hotline to receive all reports made pursuant to this section in writing or through a single state-wide toll-free telephone number, which any person may use to report known or suspected child abuse abandonment, or neglect. . . .

    * * *

    (6) Information in the central abuse hotline may not be used for employment screening, except as provided in s. 39.202(2)(a) and

    (h) 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 ss. 409.175-

    409.176. (Emphasis furnished).

    
    

29. Subsections 39.202 (1) (2)(a) and (j), Florida Statutes, provide as follows:

    1. 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.

    2. Access to such records, excluding the name of the reporter which shall be released only as provided in subsection (4), shall be granted only to the following persons, officials, and agencies:

       1. Employees, authorized agents, or contract providers of the department, the Department of Health, or county agencies responsible for carrying out:

          * * *

          (4) Licensure or approval of adoptive homes, foster homes, or child care facilities, 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.

          * * *

          (j) The Division of Administrative Hearings for purposes of any administrative challenge. (Emphasis furnished.)

          
          

30. In addition to having the authority to impose an administrative fine under Subsection 402.313(1)(b), Florida Statutes, it appears that the Department is also authorized to use the information in the central abuse hotline and the Department's automated abuse information system in the registration process for family day care homes, which would imply, since the denial of registration is part of the registration process, the authority to deny registration of a family day care home. Subsections 39.201(6) and 39.202(2)(a), Florida Statutes. However, when the Department attempts to use the allegations contained those systems to deny a family day care home registration, it must prove those allegations by clear and convincing evidence. In the instant case, the Department has failed to prove its allegations by clear and convincing evidence or by any other standard of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Respondent's application for renewal of her annual family day care home registration.

DONE AND ENTERED this 9th of January, 2001, in Tallahassee, Leon County, Florida.

___________________________________ WILLIAM R. CAVE

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2001.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Sidney M. Crawford, Esquire Sidney M. Crawford, P.A. Post Office Box 5947 Lakeland, Florida 33807

Virginia A. Daire, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 00-001865

Orders for Case No: 00-001865