STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELENA HIGHLAND,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-4598

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RECOMMENDED ORDER

Pursuant to due notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Administrative Law Judge, Stephen Dean, on

February 4, 2003, at Lake City, Florida.

APPEARANCES

For Petitioner: Elena Highland, pro se

1823 Southwest Judy Lane Lake City, Florida 32025

For Respondent: Lucy Goddard-Teel, Esquire

Department of Children and Family Services Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390

STATEMENT OF THE ISSUE

Whether the Department of Children and Family Services ("Department") properly revoked the Petitioner's, Elena Highland's, family child care home registration because her

husband, a member of the household, has a verified abuse of report of sexual abuse of a child.

PRELIMINARY STATEMENT

The Department has the burden of proof in this matter to prove by a preponderance of the evidence that Mrs. Highland's family child care registration should be revoked. The Department presented the testimony of John Dempsey, former Union County Sheriff's Deputy; Pat Caren, Child Protective Investigator; and Sandy Looney, Child Care Licensing Supervisor. Mrs. Highland testified and presented the testimony of her husband, W.H. The Department offered into evidence the following exhibits:

1. DCF Exhibit No. 1. Union County Sheriff's Department Arrest Report No. 92-46-CFA (redacted)

2. DCF Exhibit No. 2. Abuse Report 92-035063 (redacted)

   
   

3. DCF Exhibit No. 3. Revocation letter dated September 19, 2002.

   The Petitioner did not introduce any exhibits into evidence.

   The one-volume transcript of the hearing was filed on February 20, 2003. The Respondent filed proposed findings which were largely adopted. The Petitioner filed a letter which was read and considered.

   FINDINGS OF FACT

   
   

   1. The Petitioner, Elena Highland, is registered to operate a family day care home, located at her home. She has been so registered since March 1, 2002.

   2. W.H., the husband of Mrs. Highland, lives with her in their home where she operates the family day care home. W.H. also works outside the home. W.H. is the designated substitute for the family day care home.

   3. In March 1992, the Union County Sheriff's Department investigated the circumstances of an attempted suicide and sexual battery of a 15-year-old female victim in Case No. 92-46- CFA. During the investigation W.H. admitted to John Dempsey that he had sexual relations with the girl on one occasion, but it was consensual. W.H. was 21 years old at the time. W.H. was later arrested.

   4. The Department also investigated the case and verified Abuse Report No. 92-035063, against W.H. for the March 1992, sexual molestation of the 15 year-old victim for the following reasons:

      1. W.H. admitted to Deputy Dempsey that he had consensual sexual relations with the girl on one occasion.

      2. The victim was not dating W.H., was not "sweet" on him, and he was dating her aunt. The victim denied that the sex was consensual.

      3. The victim's suicide note and subsequent statements indicated that her suicide attempt was because W.H. had been forcing her to have sex over a three-year period. The victim's statements were consistent throughout the investigation, and she was severely depressed because of the abuse. The victim remained hospitalized for two months.

      4. The victim's mother had found her daughter's dresser blocking the door on one occasion, which was consistent with the girl's statement. The victim told her mother her brothers were bothering her.

      5. Another household member had seen W.H. supposedly ironing in the dark at the home on one occasion.

   5. W.H. stayed at the victim's home and at her grandmother's home on occasion. His family lived in the same projects complex as the victim's family.

   6. The prosecution of W.H. was dropped because the victim was to fragile and did not want to testify.

   7. Sandy Looney, day care licensing supervisor, testified that the Department's policy is never to register or license and/or revoke the registration or license of family day care homes with a household member who has a verified abuse report for sexual abuse in order to protect the children. Ms. Looney stated that Mrs. Highland's receipt of a family day care registration in March 2002 was a Department error.

   8. W.H. denied at hearing that he ever had sex with the victim and that he ever stated to Deputy Dempsey that he had consensual sex with the girl.

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties and the subject mater of this proceeding pursuant to Section 120.57 and Section 120.60, Florida Statutes.

   10. The Department is the administrative agency of the State of Florida charged with the duty to enforce and administer the provisions of Chapters 39 and 402, Florida Statutes.

   11. The Department seeks to deny licensure because the applicant's husband does not meet the level 2 screening requirements of Chapter 435, Florida Statutes.

   12. Section 402.313, Florida Statutes, sets out the personnel requirements for registered and licensed child day care facilities. Section 402.313, Florida Statutes, provides in pertinent part as follows:

       (1)(a) If not subject to license, family day care homes shall register annually with the department, providing the following information:

       Proof of screening and background checks.

       
       

       (3) Child care personnel in family day care homes shall be subject to the applicable screening provisions contained in ss. 402.305(2) and 402.3055. For purposes of

       screening in family day care homes, the term includes any member over the age of 12 years of a family day care home operator's family

       . . .

       
       

   13. Section 402.3055, Florida Statutes, relates to owners and operators and is not relevant to this discussion. Section 402.305(2), Florida Statutes, states in pertinent part:

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

          
          

       2. The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07.

       
       

   14. Section 435.04, Florida Statutes, sets forth the requirements for level 2 screening. Subsection 1 of Section 435.04, Florida Statutes, provides that:

       1. All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For purposes of this subsection, security background investigations shall included, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local law enforcement agencies.

       2. The security background investigations under this section must ensure that no person subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under similar statute of another jurisdiction:

       
       

       [There follows an extensive list of criminal statutes none of which are at issue in this case.]

   15. Thereafter follows the subsection which relates to confirmed reports of abuse. Subsection 3 of Section 435.04, Florida Statutes, provides as follows:

       Standards must also ensure that the person:

       1. For employees or employers licensed or registered pursuant to chapter 400, does not have a confirmed report of abuse, neglect, or exploitation as defined in s. 415.102(6), which has been uncontested or upheld under s. 415.103.

          
          

       2. Has not committed an act that constitutes domestic violence as defined in s. 741.30.

       
       

   16. And therein lies the problem. The mandated level two screening by its own terms limits consideration of confirmed reports of abuse, neglect and exploitation to employees or employers licensed or registered pursuant to Chapter 400. There is no authority to apply this particular screening requirement to registrants and licensees being screened pursuant to Chapter 402.

   17. Section 435.04(1), Florida Statutes, starts out addressing all employees required to be screened and lists the agencies to be checked. However, subsection (3) of Section 435.04, Florida Statutes, specifically mentioning checks of the abuse registry, limits its applicability to employees or employers licensed or registered pursuant to Chapter 400. In sum, the specific reference to Chapter 400 limits the provision's applicability to any other chapter.

   18. There is no authority to consider abuse registry information in screening pursuant to Chapter 402. Given the amendment of the abuse registry statute and the limitations placed upon using data from this registry, including confidentiality issues, in the absence of specific authority, information contained in the statute may not be considered. This is the sole source of the information at issue in this case. There is no other negative information regarding the applicant.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Administrative Complaint be dismissed.

DONE AND ENTERED this 21st day of April, 2003, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2003.

COPIES FURNISHED:

Elena Highland

1823 Southwest Judy Lane Lake City, Florida 32025

Lucy Goddard-Teel, Esquire Department of Children

and Family Services

Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390

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: 02-004598

Orders for Case No: 02-004598