STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA RICHMOND,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-3019

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 8, 2002, by video teleconference between Orlando and Tallahassee, Florida, before Carolyn S. Holifield, a duly- assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linda Richmond, pro se

25 West 14th Street Apopka, Florida 32703

For Respondent: Richard B. Cato, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a family day care home should be granted.

PRELIMINARY STATEMENT

On or about December 17, 2001, Petitioner, Linda Richmond, submitted an application for a license to operate a family day care home pursuant to the provisions of Chapter 402, Florida Statutes. In a Notice of Denial of Registration ("Notice" or "Notice of Denial"), dated June 12, 2002, Respondent, the Department of Children and Family Services ("Department"), denied Petitioner's application. According to the Notice, the denial was based on the "[b]ackground screening [which] revealed a prior incident of neglect of [Petitioner's] children and inadequate supervision." Petitioner disagreed with the denial and, by letter dated July 3, 2002, requested a formal hearing to contest the Department's decision. On or about July 31, 2002, the Department forwarded the case to the Division of Administrative Hearings for the conduct of a formal hearing.

At hearing, Petitioner testified on her own behalf and called three witnesses: Alvin Richardson, Petitioner's husband; Jocelean Slydell, a friend of Petitioner's; and Tequela Cook, Petitioner's daughter. Petitioner had six exhibits received into evidence. The Department called two witnesses, Patricia Richardson, a family services counselor with the Department, and Diane Green, a human services program director with the Department. The Department had six exhibits received into evidence.

A Transcript of the hearing was filed on October 30, 2002.

Neither Petitioner nor the Department filed a proposed

recommended order.

FINDINGS OF FACT

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

1. Petitioner, Linda Richmond, formerly Linda Cook, applied for a license to operate a family day care at her residence.

2. In connection with Petitioner's licensure application, dated December 17, 2001, the Department conducted a background screening of Petitioner, which included a review of the following: local and state criminal records; Florida Department of Law Enforcement reports; FBI records; records of the Florida Hot Line Information System; employment history; and affidavits of good moral character.

3. Based on information obtained from the Florida Hot Line Information System, the Department denied Petitioner's application to operate a family day care home. According to the Notice of Denial dated June 12, 2002:

   [Y]our registration to operate a Family Day Care Home is being denied at this time due to the following:

   
   

   (1) Background screening revealed a prior incident of neglect of your children and inadequate supervision.

   
   

   The facts underlying the report demonstrates [sic] an inability to ensure the safety of children in your care to the level necessary to be registered as a Family Day Care Home.

   
   

4. The Notice of Denial does not specify which background screening records the Department relied on in reaching its decision to deny Petitioner's application. However, in light of the evidence presented by the Department, the denial was apparently based on information included in a 1990 Abuse Report and/or a 1995 Abuse Report.

5. The 1990 Abuse Report noted that Petitioner admitted using crack cocaine and having people come to her home for the purpose of using crack, but denied that she used drugs in her children's presence. Also, the 1990 Abuse Report indicated that one of Petitioner's minor children had been fondled by a man who was at the home for several days and that Petitioner "reported being in the home at the time of the alleged incident." Furthermore, according to the 1990 Abuse Report, the house in which Petitioner, her then husband, and her children lived was not clean and did not have electricity.

6. The 1990 Abuse Report concluded that Petitioner had neglected her children. Based on the investigation, on or about October 25, 1990, the report was closed as "confirmed for

   conditions hazardous to health and all other maltreatments are indicated."

7. The 1990 Abuse Report noted that "due to the condition of the home and the crack usage in the home by the parents," the children were placed in the home of their maternal grandmother. Finally, as to the disposition of the case and the services to be provided, the report stated that the risk and severity of harm to the children was low "in the grandparental home," that protective service supervision was needed, and that the case was referred to protective services for ongoing supervision.

8. Petitioner admits that at the time of the 1990 Abuse Report and investigation related thereto, she was addicted to crack cocaine. However, Petitioner's credible testimony was that she never used crack or any illegal drug in her children's presence. Moreover, at the time one of her minor children was fondled by a man temporarily staying at the house in which the children lived with their father, Petitioner was estranged from her then husband, was not staying with him and the children, and was not aware of that incident until some time after the incident occurred.

9. Notwithstanding the findings and conclusions in the 1990 Abuse Report, there is no evidence that Petitioner neglected or failed to supervise her children, as alleged by the Department.

10. In late 1995 or early 1996, a second abuse report, the 1995 Abuse Report, was generated following an investigation into allegations that the maternal grandfather of Petitioner's children was physically abusing them. As a result of an investigation, the 1995 Abuse Report found that the maternal grandfather, with whom the Petitioner's children were living, had used excessive corporal punishment on them. The report was closed with a finding of verified maltreatment of the children by their maternal grandfather.

11. During the time period covered by the 1995 Abuse Report and the maltreatment of Petitioner's children by their maternal grandfather, the children were not living with Petitioner. They were living with and in the custody of their maternal grandparents, having been placed with them by the State as a result of the findings and conclusions in the 1990 Abuse Report. As accurately noted in the 1995 Abuse Report, Petitioner's role at the time covered by the report was that of "parent not in home."

12. Nothing in the 1995 Abuse Report indicates that Petitioner neglected or failed to supervise her children. Rather, it was Petitioner who called the Abuse Hot Line on December 19, 1995, after she observed her father hit one of her children so hard that the child fell to the ground. This incident occurred December 19, 1995, while Petitioner was at her

    parents' house to visit her children and give them Christmas gifts.

13. The reason Petitioner called the Abuse Hot Line to report the December 19, 1995, incident described in paragraph 12 was that she cared about her children and perceived her father's action to be physical abuse of one of her children.

14. Although Petitioner reported the December 19, 1995, incident the day it occurred, no one came out to investigate the matter. The following day, Petitioner reported the incident to her counselor at the Center for Drug Free Living, who then telephoned the Abuse Hot Line.

15. The Notice of Denial fails to state any facts from either the 1990 Abuse Report or the 1995 Abuse Report which establish that Petitioner neglected or failed to adequately supervise her children. Moreover, neither the 1990 Abuse Report nor the 1995 Abuse Report supports the Department's allegations that Petitioner neglected or failed to supervise her children. Finally, the Department presented no evidence to support its allegations or to demonstrate Petitioner's "inability to ensure the safety of children in [her] care to the level necessary to be registered as a Family Day Care Home."

16. Petitioner successfully refuted the Department's allegations that she neglected and failed to adequately supervise her children, even though she admitted that in 1990,

    she was addicted to crack cocaine. However, this admission by Petitioner, standing alone, does not establish the Department's allegations.

17. After the 1990 Abuse Report was issued and prior to issuance of the 1995 Abuse Report, Petitioner faced her addiction and took action to turn her life around so that she could regain custody of her children. As part of Petitioner's rehabilitative process, she successfully completed a drug treatment program as evidenced by the fact that she has been "drug free" since September 15, 1995, or for more than seven years. In addition to the drug treatment program, Petitioner also participated in and completed a parenting class.

18. After completing the drug treatment program and the parenting class, Petitioner regained custody of and was reunited with her children. In March 1996, Petitioner was awarded "supervised" custody of her children. Six months later, Petitioner was awarded permanent custody of her children.

19. There is no indication that Petitioner neglected, abused, mistreated, or failed to supervise her children either prior to or after March 1996, when she regained custody of the children.

20. Since successfully completing the drug treatment program and parenting class and regaining custody of her children, Petitioner has had a stable work history, has

    remarried, and has become an active member of a church in her community.

21. From 1996 through 1999, Petitioner was employed as a housekeeper by Disney World. After leaving Disney World, Petitioner was employed at Sophie's Kids Learning Center, as a child care provider or "teacher" of toddlers. Petitioner is currently employed at Sophie's Kids Learning Center and has been employed there since 1999, except for a six-month period when she took leave to care for her daughter and grandchild. In letters of support, Petitioner is described as a good employee, one of the center's best instructors who is doing "excellent work with children of all ages."

22. Petitioner is an active member of Salem Gospel Baptist Church and has been for the past two years. Petitioner attends church services regularly, is a member of the church choir, and teaches a children's Sunday School Class. Letters of support from the pastor of the church and a church member indicate that Petitioner is a committed member of the church who works with the children in the church. These letters also state that Petitioner has gained and enjoys the respect of the parents in the church as well as those not in the church.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administration Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes.

24. Chapter 402, Florida Statutes, governs licensure and registration of child care facilities, including family day care homes. Subsections 402.308(3) and 402.313(1), Florida Statutes.

25. The Department seeks t3o deny Petitioner's application for a family day care home license on the grounds that a background screening revealed that she neglected and failed to adequately supervise her children.

26. Subsection 402.305(1), Florida Statutes, requires the Department to establish minimum standards that all child care facilities must meet. These licensing standards include minimum standards for child care personnel as enunciated in Subsection 402.305(2), Florida Statutes, which provides the following:

    Minimum standards for child care personnel shall include minimum requirements as to:

    
    

    1. Good moral character based upon screening. This screening shall be conducted as provided in chapter 435, using level 2 standards for screening set forth in that chapter.

       
       

27. Section 402.313, Florida Statutes, authorizes the Department to license family day care homes and to conduct appropriate background screenings to determine if child care

    personnel meet the requisite qualifications to work with children.

28. Subsection 402.313(3), Florida Statutes, provides in relevant part the following:

    Child care personnel in family day care homes shall be subject to the applicable screening provisions contained in ss.

    402.305(2). . . .

    
    

29. In this case, the Department denied Petitioner's application based on the information revealed in its background screening of Petitioner. The background screening documents upon which the Department relied were the 1990 Abuse Report and the 1995 Abuse Report.

30. Subsection 39.202(2)(a)4., Florida Statutes, allows the Department's employees to have access to abuse reports in that they are responsible for licensure or approval of child care facilities. Pursuant to that provision, the Department may consider abuse reports and their underlying facts in deciding whether to issue a license to operate a family day care home.

31. Similarly, Subsection 39.202(2)(j), Florida Statutes, allows the Division of Administrative Hearings to have access to the reports for purposes for any administrative challenge. However, the statute does not provide authority for an administrative law judge to treat such reports as sufficient in themselves to support findings of fact. Subsection

    120.57(1)(c), Florida Statutes. Accordingly, in an administrative hearing, the Department must produce evidence of the underlying facts contained in the verified abuse reports and must show that the underlying facts constitute the alleged conduct or offense.

32. In this case, the Department has the burden of proof to establish by a preponderance of the evidence that Petitioner neglected her children and failed to adequately supervise them as reflected in the abuse reports upon which it relied. The Department did not establish the factual allegations in the 1990 Abuse Report. Moreover, the 1995 Abuse Report contains no factual allegations that could be reasonably construed to conclude that Petitioner neglected or failed to supervise her children. Therefore, the Department has not established that Petitioner neglected and failed to adequately supervise her children.

33. Because the Department failed to meet its burden, the burden shifts to Petitioner to establish that she is eligible for the license which she seeks. Petitioner has met her burden of proof by demonstrating that she has met all the Department's requirements for licensure.

34. Since there is no credible evidence substantiating the 1990 Abuse Report that Petitioner neglected or failed to supervise her children and nothing in the 1995 Abuse Report that

even alleges such charges, the Department's charges and the abuse reports on which it relied cannot serve as a basis for denying Petitioner's license. Therefore, Petitioner's application for licensure should be granted.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for licensure to operate a family day care home.

DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

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 13th day of December, 2002.

COPIES FURNISHED:

Richard B. Cato, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782

Linda Richmond

25 West 14th Street Apopka, Florida 32703

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: 02-003019

Orders for Case No: 02-003019