STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CUTINA FANIEL,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 04-1063

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 2, 2004, in Lakeland, Florida, before

Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to a license to operate a family day care home under the provisions of Chapter 402, Florida Statutes (2003).

PRELIMINARY STATEMENT

By letter dated February 16, 2004, Respondent, the Department of Children and Family Services (Department), denied Petitioner, Cutina Faniel's (Petitioner), application to operate a family day care home. According to the letter, the application was denied for the following reasons: (1) a Florida Abuse Hotline Information System background check indicated a prior report regarding safety of children; and (2) an adult who resides in Petitioner's home has a criminal history. Petitioner requested a formal hearing to contest the Department's decision. The request was forwarded to the Division of Administrative Hearings on March 26, 2004.

Prior to the evidentiary portion of the hearing, at the Department's request, the undersigned took official recognition of Sections 402.301 through 402.310 and 402.313, Florida Statutes (2003), and Florida Administrative Code Rule

65C-20.008.

At hearing, the Department presented the testimony of two witnesses, Jim Pickett and Patricia Hamilton, both employees in the Department's Child Care Licensing Division. The Department offered and had three exhibits received into evidence.

Petitioner did not appear at hearing and no evidence was presented on her behalf.

The proceeding was recorded, but no transcript was ordered.

Petitioner did not file a proposed recommended order. The Department filed a Proposed Recommended Order, which has been considered in preparation of this recommended order.

FINDINGS OF FACT

1. On February 16, 2004, the Department notified Petitioner that her application for a license to operate a family day care home was denied. The denial was based on information obtained by the Department as part of the background check it conducted in review of Petitioner's application.

2. The denial letter advised Petitioner that the family day care home license was denied based on information contained in Abuse Hotline Report No. 2002-132739 (2002 Abuse Report). According to the 2002 Abuse Report, Petitioner failed to take her daughter to the doctor for a follow-up visit three weeks after he removed a cast from her arm, so that the doctor could insure that the injury was healing properly. As a result of the foregoing allegations, the 2002 Abuse Report concluded that there were "some indicators" of medical neglect by Petitioner.

3. The Department's background investigation revealed that Petitioner's husband, Darrell Faniel, who resided with her, pled nolo contendre to the charge of selling cocaine, a felony offense, and was adjudicated guilty of that offense in 1991 in Case No. CF90-5739 in the Circuit Court of the Tenth Judicial

   Circuit in and for Polk County, Florida, Criminal Division. As a result of this felony conviction on July 25, 1991, Mr. Faniel was placed on probation for five years, but was discharged from probation about 16 months early pursuant to a court order which stated that Mr. Faniel "has complied with the rules and regulation of probation and is no longer in need of supervision."

4. The family day care home license for which Petitioner applied would allow her to care for up to ten children in her home. Given the foregoing information obtained by the Department as part of its background investigation, the Department had doubts about whether Petitioner could provide a safe day care home for children. Accordingly, the Department denied Petitioner's application.

5. The foregoing facts have not been refuted by Petitioner, nor did she present any evidence to demonstrate that she is eligible for licensure as an operator of a family day care home. As noted in the Preliminary Statement, Petitioner did not appear at hearing, and no evidence was presented on her behalf.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2003).

7. Chapter 402, Florida Statutes (2003), governs licensure and registration of child care facilities, including family day care homes. §§ 402.308(3) and 402.313(1), Fla. Stat. (2003).

8. Subsection 402.305(1), Florida Statutes (2003), requires the Department to establish minimum standards that all child care facilities must meet. These licensing standards, which include minimum standards for child care personnel, are enunciated in Subsection 402.305(2), Florida Statutes (2003), 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.

      
      

9. Section 402.313, Florida Statutes (2003), 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.

10. Subsection 402.313(3), Florida Statutes (2003), reads as follows:

    (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, or persons over the age of 12 years residing with the operator in the family day care home. Members of the operator's family, or persons residing with the operator, who are between the ages of 12 years and 18 years shall not be required to be fingerprinted, but shall be screened for delinquency records.

    
    

11. Because Petitioner's husband resides in the home which she seeks to have licensed as a family day care home, he is subject to the applicable screening standards in Chapter 235, Florida Statutes (2003), pursuant to Subsection 402.305(2), Florida Statutes (2003).

12. The undisputed evidence at hearing was that Petitioner's husband was convicted of selling cocaine, a felony. Petitioner presented no evidence to dispute this finding.

13. The Department also alleged as grounds for denial of Petitioner's application a 2002 Abuse Report which indicated that, regarding Petitioner's daughter, there were some indicators of medical neglect by Petitioner.

14. Subsection 39.202(2)(a)4., Florida Statutes (2003), 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 acts

    in deciding whether to issue a license to operate a family day care home.

15. Similarly, Subsection 39.202(2)(j), Florida Statutes (2003), allows the Division of Administrative Hearings to have access to the reports for purposes of 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. § 120.57(1)(c), Fla. Stat. (2003).

16. The Department properly considered the 2002 Abuse Report in reviewing Petitioner's application and was concerned that the report noted that Petitioner failed to take her daughter to the doctor for a follow-up visit as directed by the doctor. The evidence established that the alleged incident concerned the Department because, if true, it called into question Petitioner's ability to provide a safe day care home and safe care for other people's children. In light of the fact that, if issued a family day care home license, Petitioner would be allowed to care for up to ten children, the Department's concerns were justified and reasonable.

17. The grounds for which the Department denied Petitioner's license were not refuted by Petitioner. As noted in the foregoing findings, Petitioner did not appear at hearing. Accordingly, the allegations in the denial letter,

which were based on information revealed in the Department's background screening conducted in connection with the review of Petitioner's application, can properly serve as a basis for denying Petitioner's application.

RECOMMENDATION

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

RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner a license to operate a family day care home.

DONE AND ENTERED this 20th day of July, 2004, in Tallahassee, Leon County, Florida.

S

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 20th day of July, 2004.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Cutina Faniel 2404 Temple Circle

Haines City, Florida 33884

Paul F. 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: 04-001063

Orders for Case No: 04-001063