STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUCILLE PARKER,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-2947

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RECOMMENDED ORDER

Pursuant to notice, this cause came on for Formal Proceeding before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, in Shalimar, Florida, on October 23, 2002. The appearances were as follows:

APPEARANCES

For Petitioner: Lucille Parker, pro se

212 Ajax Drive Pensacola, Florida 32548

For Respondent: Rick D. Cserep, Esquire

Department of Children and Family Services

160 Government Center, Suite 601 Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concern whether the Petitioner's registration to operate a registered family daycare home should be revoked.

PRELIMINARY STATEMENT

This cause arose when the Department of Children and Family Services (Department) notified the Petitioner by letter of

June 11, 2002, that it was revoking the Petitioner's registration to operate a registered family daycare home (home). The letter alleged violations of Florida Statutes involving child safety and moral character. The Petitioner elected to contest this initial agency action and ultimately a proceeding ensued before the Division of Administrative Hearings and the undersigned Administrative Law Judge.

The cause came on for hearing on the above-referenced date.

The Petitioner presented her own testimony and that of four additional witnesses at hearing and the Respondent called three witnesses to testify. The Respondent offered five exhibits which were admitted into evidence. Upon conclusion of the proceedings the parties were given at their request, 21 days from the filing of the transcript of the hearing in which to file proposed recommended orders. After a delay of some months and repeated attempts by the undersigned, as well as counsel for the Department, to ascertain the whereabouts of a transcript, it appeared that a transcript would not be made available.

Consequently, the parties were ordered to submit proposed recommended orders, if they desired to do so, within 10 days of

March 3, 2003. Proposed recommended orders were submitted and thereafter a transcript of the hearing was belatedly filed.

FINDINGS OF FACT

1. The Department is an agency of the State of Florida charged with registering family daycare homes in Florida and regulating their practices and operations. The Petitioner has been registered to operate a family daycare home since 1998. That registration was conditional because of an incident which occurred on January 14, 1999, involving the Petitioner's daughter, Cleta Brantley, in which Ms. Brantley purportedly brandished a knife and threatened a neighbor in the daycare home in the presence of the children being kept there. The investigation of that incident (not directly involved in this proceeding) resulted in the Petitioner's registration being made conditional, based upon her ensuring that in the future Cleta Brantley would never be present in the home.

2. James Farrar is a child protective investigator with the Department. He testified on behalf of the Department in this proceeding. He is personally engaged in three investigations regarding child abuse, abandonment or neglect involving the Petitioner's home, including one investigation which was still in progress as of the date of the hearing. The earliest investigation involved an incident of domestic violence which occurred on January 14, 1999. That incident was a violent

   altercation between the Petitioner's daughter, Cleta Brantley and the neighbor, during which Ms. Brantley brandished a knife in the daycare home in the presence of the clients' children. The investigation revealed that three of Ms. Parker's relatives, Cleta Brantley, Thomas Brantley, and William Ousley, were residing with Ms. Parker, at least part of the time. Mr. Farrar made findings of maltreatment, verified, for domestic violence and associated with a deadly weapon.

3. The second investigation involving Mr. Farrar related to concerns involving an incident occurring in May 2002. In this incident, Ms. Parker's son William Ousley, was residing at the home when a verbal altercation erupted between Mr. Ousley and other family members and the Petitioner's assistant who worked in the daycare operation at the home. Mr. Ousley was under the influence of alcohol during this altercation and children were present in his immediate vicinity in the home.

4. Mr. Farrar's investigation revealed that Mr. Ousley had a criminal background involving a felony conviction and had not been subjected to "level two screening" before the Petitioner allowed him to occupy the home, at least on a part-time basis. On the day in question Mr. Ousley was in a drunken state and became very angry and argumentative and engaged in a shouting altercation with a person or persons in the home, culminating in his throwing a beer bottle inside the home. The daycare worker

   or assistant of Petitioner ordered him to leave or she would call the police. Ultimately she summoned the police who arrived, investigated the incident and made a report. One of the officers involved testified at the hearing. Mr. Farrar made verified findings of maltreatment regarding the children in the home on the basis of their being exposed to a person who was abusing alcohol and for possible physical harm to the children.

5. Mr. Farrar also had an active investigation of child abuse at the time of this hearing. This investigation involved an incident occurring less than two weeks before the administrative hearing. In this incident some dogs which the Petitioner was keeping at her home, which belonged to her son Thomas Brantley, attacked a child in the front yard of the home, resulting in injuries to the child requiring some 50 stitches and staples in the child's head and back. Four other children were present in the home at the time of the attack. The dogs had been living in the home for approximately two years at the time of the incident. This incident is not itself a basis for the proposed revocation in this case and was not noticed as a ground for proposed revocation by the Department's charging letter of June 11, 2002. The evidence of this incident is used as corroborative evidence to the testimony and evidence offered concerning the incidents giving rise to the charging letter and proposed agency action.

6. Debra Ann Martin is a family counselor in the licensing department of the Department of Children and Family Services. She testified at the hearing. She is the caseworker who has been assigned to the Petitioner's home since March of 1999. She described the Department's requirements concerning background screening for anyone over the age of 12 who lives in, occupies or resides in a registered daycare home. Ms. Martin established that Ms. Parker has been advised a number of times concerning these rules regarding screening and has knowledge of the screening requirements.

7. The Department's Composite Exhibit One in evidence consists of Ms. Parker's registration applications with the Department, each dated in December 1999, 2000 and 2001, respectively. Other than her granddaughter, listed on the 1999 application, Ms. Parker did not list anyone as a family or household member in any of those applications.

8. Ms. Martin offered a chronology of history of disturbances and incidents involving the Lucille Parker Daycare Home. Ms. Martin established that the Department had denied Ms. Parker's application to re-new her registration in 1999

   based upon the concerns of the Department involving Ms. Parker's daughter, Cleta Brantley, referenced above. Ultimately, however, Ms. Parker was allowed to re-register her home on the condition that Cleta Brantley would not live at the home or be

   allowed any access to the children in the home. During a visit on December 22, 1999, however, Ms. Martin observed Cleta Brantley in the home with her belongings and clothing. The Petitioner testified that Ms. Brantley was merely at the home briefly that day to pick up belongings and clothing which had been left at the home at an earlier date and that she did not actually reside at the home. Further contact by Ms. Martin in the year 2000 and 2001, however, showed that Cleta Brantley and William Ousley both stayed at the home or spent the night on occasions. Ms. Martin described several other incidents when she found evidence that one or more of Ms. Parker's children were sleeping in the daycare home, including an incident in which Thomas Brantley threatened to turn his dogs on her. All of these children or relatives were over the age of 12 at the times in question. They were not and have not been subjected to screening by the Department.

9. Officer Frank Van Schmidt of the Fort Walton Beach Police Department testified on behalf of the Department. Officer Van Schmidt was involving in an incident in May of 2002, in the daycare home of the Petitioner, Lucille Parker. The incident involved Ms. Parker's son, William Ousley. Officer Van Schmidt described observing Mr. Ousley as very intoxicated, angry, yelling and screaming. Officer Van Schmidt testified that Mr. Ousley made it clear to him that he lived at

   Ms. Parker's home. Officer Van Schmidt established that the Petitioner, Lucille Parker, initially told him that Mr. Ousley did indeed live there but changed her story later on the same day. This was the day when Officer Van Schmidt investigated the incident, described above, involving William Ousley and the angry drunken altercation. Officer Van Schmidt testified that during the investigation of the incident he overheard Lucille Parker telling someone that she had previously advised the Department several times that Mr. Ousley did not live in the residence because if the Department found out that he did live there she could lose her license. This was after Ms. Parker had advised the officer that Mr. Ousley did not reside at the residence. This is also after Ms. Clayborne, who worked for Ms. Parker and Ms. Gibson, who was present at the scene, had earlier advised the officer that Mr. Ousley did live at the residence. Before he left the home on that day Officer

   Van Schmidt advised Ms. Parker that the case would be forwarded to the Department of Children and Families. She asked him not to contact the Department and he advised her that he had to tell them according to law. She then stated that she would pay him money if he would not say anything to the Department but he advised her that they had already been notified and that a report would be sent to them.

10. The Petitioner, Lucille Parker, testified on her own behalf. She testified generally that various persons often stayed at her home for limited periods of time. She testified that William Ousley would "stay" with her when he was in town and that the Department found out about that when Ms. Martin discovered Mr. Ousley at the home. Ms. Parker acknowledged that Ms. Ousley had never been given or requested a background screening. Ms. Parker stated that she told Debra Martin that Mr. Ousley was not living there. She further acknowledged that she had kept Mr. Thomas Brantley's dogs at her home for several years and that these were the same dogs involved in the

    October 2002 attack on a child on her premises.

    
    

11. The Petitioner called her other witnesses, some of whom have had their children kept by the Petitioner for substantial periods of time in the last two decades. They uniformly described the Petitioner as given good care to their children, maintaining a safe environment for them and being a very loving keeper of their children. These witnesses who have had their children kept by the Petitioner uniformly testified that they would not hesitate to have her keep their children once more or to continue to keep them as the case may be. Additionally, the Petitioner's minister described the Petitioner as good Christian person who has been an active worker in her church for some 40 or more years, of the highest moral character

    and otherwise quite well suited to continue to keep children in her home.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to these proceedings. Sections 120.569 and 120.57, Florida Statutes (2001).

13. In essence, by its charging document in this proceeding, the Department is attempting to revoke the registration of the Petitioner for operation of a family daycare home based upon Section 402.301(2), Florida Statutes, which requires that all owners and operators and child care personnel shall be of good moral character. The Department also relies on Section 402.305(2), Florida Statutes, which requires in pertinent part, that all child care personnel adhere to minimum requirements as to good moral character based upon screening, using the level two standards for screening provided in

    Chapter 435, Florida Statutes. The Department maintains that the Petitioner failed to display good moral character as to the decisions she made regarding individuals living in her home and their activities and the incidents surrounding them during the times of and with regard to the investigations at issue.

14. "Good Moral Character" had been defined to encompass not only the ability to distinguish between right and wrong but

    the character to observe the difference. This includes the observance of rules, the observance of conduct acceptable for positions of trust and confidence, and an absence of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness and respect for the laws of the state and the nation. See Florida Board of Bar

    Examiners, In Re: GWL., 364 So. 2d 454, 458 (Fla. 1978); Zemour v. State Division of Beverage, 347 So. 2d 1102, 1005 (Fla. 1st DCA 1977).

15. The evidence shows that Ms. Parker's registration was conditional, and that her daughter Cleta Brantley was not allowed to stay in the home or have access to any children kept in the home. The Department established that Ms. Parker allowed Cleta Brantley to stay at her home on at least two occasions after this condition was imposed without notifying the Department.

16. The evidence also shows that Ms. Parker allowed her relatives, Thomas Brantley and William Ousley, to have free access to her home and to reside in her home on various occasions. This is within the meaning and intent of

    Section 402.302(3), Florida Statutes, concerning the screening of child care personnel. The evidence showed that Ms. Parker never notified the Department of the need to have the two men screened and she admitted that Mr. Ousley resided at her home

    for a period of time. She further allowed Mr. Ousley to continue residing there despite being told by department personnel that he had to submit to screening and despite the fact that Mr. Ousley failed to do so.

17. The testimony of Officer Van Schmidt established persuasive evidence of a number of lapses of moral character by the Petitioner. The Petitioner allowed a unscreened relative, Mr. Ousley, to live in her home without notifying the Department, Mr. Ousley has a felony conviction and became intoxicated and disorderly, thus exposing the children in the daycare home to the use or abuse of alcohol and a potential danger to their safety. Ms. Parker initially admitted to the officer that Mr. Ousley lived there, but then changed her story because she realized that his living there could jeopardize her daycare registration. Finally, realizing her registration would be in jeopardy because of the incident involving Mr. Ousley, Ms. Parker made an improper offer to Officer Van Schmidt in an effort to persuade him not to report the incident to the Department.

18. The evidence also establishes, generally speaking, Ms. Parker is a moral and religious person. The evidence adduced by Ms. Parker, which was un-controverted, also establishes that she has provided good quality child care service in her home for many years. There have been lapses in

her moral character, however, in the particulars found and concluded above and the ultimate conclusion is thus inescapable that her registration can not remain in an unencumbered or unsanctioned status because of this. She has a record of repetitively ignoring the statutes and rules governing operation of her facility and has continually allowed her relatives access to, and residence in her home and access to the children that she keeps there, despite a clear understanding that these persons must first be screened by the Department. The evidence shows deliberate attempts by Ms. Parker to conceal the presence of these relatives in an attempt to protect her registration from sanction. Consequently, sanction is appropriate.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED:

That the Petitioner's registration to operate a registered family daycare home should be revoked; however, the revocation should be suspended for a period of one year, during which time the Petitioner, operating under reasonable, but frequent inspection and reporting requirements imposed by the Department, should be given an opportunity to show that the violations of

the relevant statutes and rules have been corrected and that she is maintaining the operation of her registered family daycare home in a manner which precisely comports with the rules, policies and statutes that the Department is charged with enforcing. If she demonstrates such compliance to the Department at the end of one year then her registration should be restored in an unimpeded status. If she does not, then revocation should be carried out.

DONE AND ENTERED this 9th day of May, 2003, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 9th day of May, 2003.

COPIES FURNISHED:

Lucille Parker 2112 Ajax Drive

Pensacola, Florida 32548

Rick D. Cserep, Esquire

Department of Children and Family Services

160 Governmental Center, Suite 601 Pensacola, Florida 32501

Paul Flounlacker, 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 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: 02-002947

Orders for Case No: 02-002947