The Issue Whether petitioner should take disciplinary action against respondent for the reasons (other than the alleged existence of a substantiated indicated abuse report) alleged in the amended administrative complaint?
Findings Of Fact Anderson's Child Care Center at 507 Texas Avenue in Crestview was one of the day care centers Mr. Brown of the Okaloosa County Health Department routinely inspected. Respondent testified without contradiction that she has operated a child care center at her Texas Avenue home since September of 1973, with the exception of the time petitioner closed her down. See Anderson v. Department of Health and Rehabilitative Services, 482 So. 2d 491 as clarified on reh. 485 So. 2d 849 (Fla. 1st DCA 1986). From this evidence it is inferred that she holds a license for a child care center. No evidence suggested otherwise. In the summer and fall of 1985, Lucy's husband Charles lived with her and worked at the child care center. J. S. On July 18, 1985, J.S., who was born January 5, 1982, spent his first day at the Anderson Child Care Center. J.S. was "right about the age [for] learning but c[ould]n't void on command." (T.48). He lacked "the voluntary control" (T.48) to "void on command," but he had learned to restrain himself before attending the Anderson Child Care Center. Although he was toilet trained before he began attending Anderson Child Care Center, he "started having lots of accidents and messing in his pants" (T. 73) after July 18, 1985. When left at the center, J.S. "got where he would throw a fit. He would not want to stay. And when . . . [Mrs. S.] would go pick him up, he would still be crying." (T. 77 ) September 11, 1985, was his thirteenth and final day at the Anderson Child Care Center. On September 12, 1985, A.S.'s mother took her to Eglin Regional Hospital in order to be examined, on account of the redness of her 23-month-old vaginal area. (T.74) J.S. accompanied his mother and sister. Leslie Price Kurtz, an Air Force Officer and pediatrician who saw A.S., diagnosed a rash on her nates as impetigo. In the course of inquiring about A.S., Dr. Kurtz was told by Mrs. S (who relayed information she had received from M.S., 8-year-old brother of J.S. and A.S.) that J.S. did not like to go to the bathroom at Anderson's Child Care Center, which all three S. children attended, because of immodest conditions there. The story Dr. Kurtz got was that the children were directed to use the bathroom at specific times and had no privacy when they did. (T.50) Based on this information, and on Mrs. S's report that J.S. had once been potty trained but had recently regressed, Dr. Kurtz suggested to Mrs. S. that she remove her children from Anderson's Child Care Center. Dr. Kurtz contacted the Department of Health and Rehabilitative Services which, as far as she knew, took no action at that time. In Dr. Kurtz's opinion, "a disturbance . . . had occurred with [J.S.] . . . secondary to the child's behavior as described . . . by the mother." (T.50) J. N. On September 25, 1985, Dr. Kurtz saw J.N. who was brought to her with complaints of an ear infection. There was no mention of any problem with his hands but Dr. Kurtz noticed that J.N., who was 20 months old at the time, had red and macerated fingers. J.N., who was born January 4, 1984, began at the Anderson Child Care Center on July 15, 1985, and attended regularly through September 27, 1985, although he missed a total of nine days, for sickness and other reasons. His parents drove him to the Center on their way to work, dropping him off about seven in the morning, and returned to pick him up about quarter past four in the afternoon. The first day he was there, three or four fingers were swollen a little when his parents picked him up. But in general things seemed to go well, at first. There were no more swollen fingers for two to four weeks and his parents saw him try to sing along with songs and do exercises at home they assumed he had learned at Anderson Child Care Center. There came a point when J.N. began to cry and cling to his mother when he was dropped off at respondent's. From then on, he cried nine times out of ten when he was left at the Anderson Child Care Center and he also frequently chewed on his fingers. One day when his father came for him, J.N. was sitting on the ground looking as if he had been crying. He refused to get up even though his father called him twice. Only after Charles Anderson told J.N. to go to his father did the child go to him. His parents never noticed J.N. chew his fingers before he began at the Anderson Child Care Center and this behavior has all but disappeared since he began attending another child care center. Only during the time he attended Anderson's did his fingers become red, swollen and infected. "[I]t was almost like he had bit right through his fingernails he had been chewing on them so much." Deposition of J.N., p.ll. They have healed completely since he left Anderson's Child Care Center. J.N. was not toilet trained when he started at Anderson's Child Care Center. He was still in diapers. After he had been at the Center two weeks, Mrs. Anderson told his mother that he seemed to have "a bowel movement after naptime when he would be outside playing,"(T.115) and suggested that he "be put on the potty at that time of the day." (T.115) Mrs. N. did not object to this proposal. Thereafter J.N. was placed on the toilet "after naptime" and regularly defecated, without crying or complaining. Child care center personnel did not punish him for accidents. Only after J.N. began at Anderson's Child Care Center, however, did his parents notice J.N. at home "go behind the furniture to go potty. It seemed like he was afraid . . ." (Deposition of J.N., P. 11) J.N. also seems to fear toilets. Id., P. 2. After J.N.'s parents related his circumstances to Dr. Kurtz, Dr. Kurtz concluded that the changes in his behavior were "most likely . . . [attributable to] conditions at Anderson Day Care Center," (T. 52) and contacted HRS. She also advised J.N.'s parents to remove him from Anderson Child Care Center immediately. J.N.'s parents sent him to Anderson Child Care Center the next day nevertheless. [T]hen we talked some more; we decided we would take him out because in -- when you're in the air force, you have your family. But in matter of speaking, the air force can run that family for you -- because if we wouldn't have taken him out of there and the doctor would have found out about it, she could have forced us to take him out of there. Deposition of J.N., P. 19. Respondent learned of dissatisfaction with the care J.N. received at the Center only after the present proceedings began. Toileting Generally In response to petitioner's interrogatories, Mrs. Anderson described toileting procedures at the Anderson Child Care Center. Petitioner offered her description in evidence: Under two years of age, after the parents agree the time for pottie training is to start, The children are exposed to the pottie usually during diaper change time. After pottie training depending on liquid ingestion, weather, child, time of day, and other variables, the children are given an opportunity periodically to use the pottie. If the children are inside they are given the opportunity every hour. If the children are outside they are given an opportunity every 1-1/2 to 2 hours. If the children need to go in the interim they are allowed to do so. If the children are going on a field trip or leave the center they are encouraged to use the bathroom before leaving. The children are also encouraged to use the bathroom right after lunch. The same procedure is employed for the children 2 through 5 and older as is the case with the children under 2 years of age after those children under 2 are pottie trained as above outlined. Usually the children are selected randomly while listening to a story for the purpose of an opportunity to use the bathroom. Petitioner's Exhibit No. 2. Mrs. Anderson's testimony at hearing was consistent with this account, as regards events after July 1, 1985. Staffing On October 9, 1985, Lucy Anderson was at Anderson's Child Care Center all day. At eight that morning Debbie Underwood and Pat Todd arrived and began work. At noon Charles Anderson came home. Thirty minutes later Debbie Underwood left the premises for lunch and at one o'clock Pat Todd left for the day. At 1:30 p.m., Debbie Underwood returned from lunch and Ann Parker reported for work. At half past two, Mr. Anderson left, but Kelley Anderson came home ten minutes later. Both Mrs. Parker and Mrs. Todd left for the day at five, but Kelley helped her mother till six. Between two and three o'clock on the afternoon of October 9, 1985, Arthur Alvin Brown, an inspector with the Okaloosa County Health Department, called at Anderson's Child, Care Center. Mrs. Anderson and three other women supervised the children while Mr. Brown was there. He stayed "probably somewhere in the neighborhood of fifteen, twenty, thirty minutes." (T.89) He counted four children inside sleeping on mats, and approximately 65 outside playing. Because he "knew the licensed capacity was fifty-five [he counted] a number of times." (T.89) Children were coming and going while he was there and he tried to take that into account. No more than five children left during his stay, however. Of the children who respondent's own records reflect were at the Center from two or earlier till three or later on the afternoon of October 9, 1985, four were ten years old, three were nine years old, eight were eight years old, two were seven years old, five were six years old, five were five years old, six were four years old, three were three years old, four were two years old and Matthew Newell was the only one-year-old. Petitioner's Exhibit No. 2. According to respondent's records, 29 other children were at the Center for some part of the time between two and three o'clock that afternoon. The age of one of the children in this group is not clear from the record. Of the others, two were two years old, only Candace Cox was three years old, two were five years old, four were six years old, eight were seven years old, three were eight years old, four were nine years old, three were ten years old and Kevin Barrow was the only eleven- year old. Petitioner's Exhibit No. 2.
The Issue Whether Respondent, Tender Loving Care Christian Learning Academy, violated section 402.305(4), Florida Statutes (2012),1/ and Florida Administrative Code Rule 65C-22.001(4)(a), regarding proper staff-to-child for a child care facility; and, if so, the appropriate penalty. Whether Respondent violated section 435.04(1), Florida Statutes, and Florida Administrative Code Rule 65C-22.006, by not having proper documentation of Level II background screening for a staff member; and, if so, the appropriate penalty.
Findings Of Fact The Department is statutorily charged with the licensing and regulation of child care facilities. See § 402.301, et seq., Fla. Stat.; and Fla. Admin. Code R. ch. 65C-20 and 65C-22. Respondent operates a child care facility located at 1234 North Martin Luther King, Jr., Avenue, Lakeland, Florida, and holds state license number C-10PO0380. On August 27, 2012, Ms. Richmond, an investigator for the Department inspected Respondent's child care facility. The inspection was the result of a complaint made against Respondent that stemmed from a child custody dispute. Ms. Richmond arrived at Respondent's facility at approximately 2:40 p.m., where she saw six children being cared for by one staff member. Ms. Richmond saw two children asleep in bouncy-seats. One of the children sleeping in a bouncy-seat appeared to Ms. Richmond to be less than one year of age. Ms. Richmond asked the staff member the age of the child, and the staff member told her that the child was six months old. Ms. Richmond informed the staff member that the room was out of compliance for staff-to-child ratio for supervising an infant. The staff member then removed the sleeping child from the bouncy-seat and took the child to the infant room, placing the sleeping child in a crib. The Department did not bring forward any other evidence showing the age of the child that Ms. Richmond believed was less than one year of age. Ms. Ross-Waring credibly testified that the child in question was her grandchild, and that the child's age was over one year of age. Ms. Ross-Waring explained that the child was small for her age because the child had been born prematurely. During the inspection, Ms. Richmond recognized one of Respondent's staff members as a former employee with a different child care facility. Moreover, Ms. Richmond knew that the staff member had a prior disciplinary history with the other facility. Ms. Richmond testified that staff members with a disciplinary history are required to disclose the prior discipline to the current employer. In order to determine if the staff member had disclosed the prior discipline, Ms. Richmond reviewed Respondent's employment file for the staff member. In reviewing the employment file, Ms. Richmond found that the staff member's records contained Level II background screening from the Agency of Health Care Administration (AHCA), but not one from the Department. Ms. Richmond informed Ms. Ross-Waring, the owner and operator of the child care facility, and Ms. Poe, the director of the child care facility, that the staff member did not have the proper documentation. As a result, the staff member immediately left the premises, and did not return until she secured the Level II background screening from the Department. The staff member obtained the required background screening and returned to work on August 30, 2012, two days after the inspection. Ms. Ross-Waring explained that she believed that the background check provided by the AHCA addressed the same information required by the Department. Therefore, she relied upon the AHCA background check. A past inspection of Respondent's child care facility dated October 7, 2011, resulted in the finding that Respondent did not have background screening documentation for a staff member, D.S., despite D.S. being hired on August 15, 2011. Respondent did not dispute the finding of the lack of proper documentation. As a means of correcting the error, the Department provided Respondent with technical support concerning the required proper background screening documentation. Respondent's failure to have the proper background screening documentation at the August 28, 2012, inspection was Respondent's second violation within two years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding that: Respondent did not violate section 402.305(4) and rule 65C-22.001(4) concerning the staff-to-child ratios; and Respondent violated rule 65C-22.010, failure to keep proper records, and that Respondent be fined $50.00 for non- compliance pursuant to rule 65C-22.010(1)(e)2.b. DONE AND ENTERED this 30th day of April, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2013.
Findings Of Fact Respondent, Anna McLean, has owned and operated Anka's Kiddie Farm in a rural section of Bradenton for approximately four years. She describes her background as being in "charity work" for the Franciscan Order for ten years in New York City. She is 59 years old. Anka's Kiddie Farm has been licensed as a day care center since September 1, 1983. Its original capacity was for forty children but the licensed maximum has been reduced to twenty. During the period in question Ms. McLean kept some children all night to accommodate their parent's work schedule. She also kept infants. Starting around the beginning of the school year in 1985, the two child care workers at the center noticed a deterioration in Ms. McLean's health and she began mistreating the children. As a form of discipline the children were made to kneel on the floor, with their knees on kernels of rice and their noses touching the wall. When they rested back on their heels, Ms. McLean poked them in the back and told them to straighten up. A two-year-old would not eat and spit the food out. Ms. McLean slapped her face and stuffed the food back in her mouth. A one-year-old wet her diaper and pulled it off. Ms. McLean taped it to the child's head and would not allow the worker to remove it. R. M. was a five-year-old at Anka's Kiddie Farm. On one occasion when the children had spaghetti for lunch, the children were made to take their shirts off. R. M. said he did not want the other children to see his "titties." Ms. McLean slapped his face and called him "tittie man" and "tittie king." Then the other children started calling him "tittie man." R. M. was made to lie down on a cot and went without lunch that day. On another occasion Ms. McLean spanked R. M. with his pants down in front of the other children. The rice discipline, the wet diaper incident, the slapping and the derision and spanking of R. M. were observed by child-care worker, Donna Catalano. Ms. Catalano left her employment at Anka's Kiddie Farms in early November 1985 and reported the incidents to HRS. She and another worker, Diane Smith, who had left around a month earlier, went to the Sheriff's Office and filed affidavits regarding the abuse of children at Anka's Kiddie Farm. Jacqueline Ernest has been a District Intake Counselor with HRS since December 1984. She investigates abuse and neglect reports. She has received in-service training with the department, has a bachelor's degree in psychology and a master's degree in psychology and family relations. In her investigation of the Anka's Kiddie Farm complaints, she interviewed Ms. McLean and her current employee, a woman who had been at the center less than two weeks. These individuals denied any wrongdoing or observation of wrongdoing. Ms. Ernest also interviewed parents and children and the two former employees, Donna Catalano and Diane Smith. She interviewed R. M. on November 8, 1985. R. M. and some of the children confirmed the complaints by Donna Catalano. Some parents felt there were problems with the care at the center, others said they saw no evidence of problems. While reports from former employees are sometimes the result of grudges, in the experience of the HRS workers such cases lack the specificity of the complaints here. In grudge reports the employees often refuse to give their names and will not likely file an affidavit or agree to testify. The HRS investigation corroborated the complaints and the investigation was closed on January 29, 1986, with a finding: "indicated and substantiated," as to the allegations of physical and emotional abuse and neglect. It was recommended that the facility be closed. On February 18, 1986, two HRS workers, Laurel Cook and Laura Winfrey delivered the notice of intended license revocation to Anna McLean at Anka's Kiddie Farm. While the workers were there Ms. McLean called one of the children over and brought out dunce caps labeled "liar," "cry-baby" and "stupid." She asked the child if she recognized the caps. The child nodded and pointed to Ms. McLean. Ms. McLean said, "No, it was Donna who made you wear the dunce caps." Laurel Cook described the child's response as a halfway nod of approval. At the hearing, Ms. McLean firmly denied that she abused the children or utilized harsh discipline. She claimed, rather, that her former employee, Diane Smith, did the things that she, Anna, was accused of doing. She said Diane Smith called R. M. a "tittie king" and that Diane had pet names for all the children, for example, "Snake," "Jungle Bunny" and "Jewish Mama." She said that Diane beat her own child and thought R. M. was horrible as he fought with her child. Ms. McLean said that because of her medical problems she could not lift more than 10 pounds. Yet she claims that she changes all the diapers because the staff doesn't like to do that. She claims that infants' diapers are changed every 20-30 minutes, whether they need it or not, and the others are changed every forty-five minutes. She denies that she ever withheld food from the children and said that she gave them "as many snacks as they want." She admits that she has had turnover in her staff, but attributes it to transportation problems as she is out in the country. Her testimony vacillated between commending Diane Smith and Donna Catalano for being good, hard workers and excoriating them. She said she is hearing a lot of complaints about Diane and Donna now, but could not get better help. She admitted that she had trouble paying her help sometimes because the parents would not pay her. She did not have an idea of a conspiracy against her. The testimony of R. M. and Donna Catalano was presented through depositions by stipulation of the parties. Their testimony as to the incidents described in paragraphs 2 and 3 above is credible, non-hearsay testimony. In contrast, Ms. McLean's testimony is rambling, contradictory, and peculiarly self-serving. Even if true, her shift of blame to her staff is a misguided defense of her day care center license. As operator of the facility, she is ultimately responsible.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that the day care license of Anna McLean, doing business as Anka's Kiddie Farm, be revoked. DONE and RECOMMENDED this 21st day of November 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of November 1986. APPENDIX The following reflects my specific rulings on the proposed findings of fact in this proceeding. PETITIONER'S FINDINGS OF FACT Adopted in Paragraph #1. Adopted in substance in Paragraphs #2 and #3. Adopted in Paragraph #7. Rejected as unnecessary. RESPONDENT'S FINDINGS OF FACT Adopted in Paragraph #1. Rejected as contrary to the weight of the evidence. Although no report was made to HRS until November 1985, the workers observed the mistreatment starting a few months earlier. Donna Catalano's employment was longer than two months. Rejected as contrary to the weight of the evidence and comprised of argument and comments on the testimony, rather than findings of fact. Adopted in general in Paragraph 7. COPIES FURNISHED: Carol M. Dittmar, Esquire Office of Legal Counsel Department of Health and Rehabilitative Services 4000 West Buffalo Avenue, 520 Tampa, Florida 33614 Philip S. Prosch, Esquire Lee and Surfus, P.A. 150 East Avenue, South Sarasota, Florida 33577 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue At issue is whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalties should be imposed.
Findings Of Fact The Department is authorized to regulate child care facilities pursuant to sections 402.301-402.319, Florida Statutes. Section 402.311 authorizes the Department to inspect licensed child care facilities. Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301-402.319. Tiny Blessings is a child care facility operating pursuant to License Number C04DU0799. The facility is located at 4932 Blanding Boulevard, Jacksonville, Florida. Lawanda Jackson is the owner of Tiny Blessings. Jacqueline King is a family service counselor for the Department's child care licensing program. She is charged with inspecting day care facilities. Ms. King has worked for the Department for over 20 years. In addition to five years in her current position, Ms. King has worked as a child protective investigator on sexual abuse cases and has served as a juvenile probation officer. Ms. King conducted the inspections of Tiny Blessings that are at issue in this case. Count I On October 6, 2010, Ms. King conducted an inspection of Tiny Blessings. The facility's records appeared to show that employee Monalisa Tedtaotao had been hired on September 3, 2010, but that her background screening had not been completed until September 27, 2010. Ms. King noted that the facility's records indicated that Ms. Tedtaotao's 40-hour training program began on September 3, 2010. Ms. Tedtaotao testified she began work at Tiny Blessings on September 27, 2010, the day the background screening was completed. Ms. Jackson was adamant that Ms. Tedtaotao did not begin work at Tiny Blessings until September 27, 2010. She believed that Ms. King either mistook the date on Ms. Tedtaotao's job application for her starting date, or was intentionally misstating the facts in order to stack the alleged violations and close down Tiny Blessings.2/ The Department produced no witness who actually saw Ms. Tedtaotao working at Tiny Blessings prior to September 27, 2010. The only document in evidence showing the date of September 3, 2010, was created by Ms. King as part of her inspection report. It is noted that Ms. Jackson produced no payroll records or other evidence to verify Ms. Tedtaotao's starting date. As to Count I, the Department proved at most that Tiny Blessings' recordkeeping was inadequate. The Department did not prove that Ms. Tedtaotao worked at Tiny Blessings as an unscreened individual. Count II Ms. King testified that, at the time of the October 6, 2010, inspection, employee Tiffany Turner's personnel file was missing a mandatory document: CS-FSP 5131, "Background Screening and Personnel File Requirements" ("Form 5131"). The Department characterized this as a "filing problem," not a situation in which the employee had failed to undergo background screening. Ms. Jackson agreed that a Form 5131 was not in Ms. Turner's personnel file on the date of the inspection. Count III Ms. King testified that on or about October 12, 2010, the Department received a complaint that Ms. Jackson had been arrested for domestic violence but was still working at Tiny Blessings. Ms. King's investigation revealed that Ms. Jackson had been charged with domestic battery in violation of section 784.03(1)(a), Florida Statutes (2010), on October 6, 2010, and had pled no contest to the charge on October 7, 2010. The county court in Jacksonville withheld adjudication and placed Ms. Jackson on 12 months of probation with early termination contingent upon her completion of the Safe Families program and her having no contact with the victim. Under the provisions of section 435.04(3), Florida Statutes (2010), a plea of nolo contendere to an offence that constitutes domestic violence as defined in section 741.28, Florida Statutes, is an offence that disqualifies a person from occupying a position for which a Level 2 Background Screening is required. Ms. King testified that on October 12, 2010, she advised Ms. Jackson that her plea constituted a disqualifying offence. Ms. Jackson did not accept Ms. King's statement. Ms. King put Ms. Jackson on the phone with staff in the Department's background screening office, who confirmed Ms. King's statement. Ms. Jackson testified that she entered her plea only upon the assurance by the court and the assistant state attorney that the domestic violence charge was not a disqualifying offense and the plea would not affect her child care license. On November 3, 2010, Ms. Jackson's counsel filed in the county court a motion to vacate and set aside the judgment. In the motion, counsel stated as follows, in relevant part: The Defendant, by and through her undersigned counsel, raised the issue of the Defendant's fear of losing her daycare license as a result of pleading to the charge of Battery. The State Attorney and the judge both advised the undersigned counsel that the daycare license would not be affected. Upon reliance on same, the Defendant entered a plea of nolo contendere to the charge of Battery and was sentenced on the same day. On or about October 15, 2010, the Defendant was visited by an agent from the Department of Children and Families and advised that due to her plea of no contest to the battery charge and being sentenced on same, the Defendant's daycare license was subject to forfeiture and ineligibility. This came as a result in a change of law that took effect in July 2010 that mandates that either an adjudication of guilt or a withhold [sic] of guilt on a domestic charge, such as Battery, makes the license holder ineligible to run a daycare.3/ As of the date of the hearing in the instant case, the county court had not acted on Ms. Jackson's motion to vacate. On May 24, 2011, the court denied a May 17, 2011 motion filed by Ms. Jackson to "amend the record."4/ The Department sent Ms. Jackson a certified letter, dated December 1, 2010, advising her of her disqualifying offence and of the process contained in chapter 435 for Ms. Jackson to seek an exemption from disqualification. The post office tracking slip indicated that the letter was returned unclaimed on December 31, 2010. Ms. Jackson knew or should have known, no later than December 31, 2010, that she was disqualified from operating a day care facility. Ms. Jackson has never filed an application for an exemption from disqualification. Count IV K.J. is a four-year-old autistic boy. He has a six- year-old sister, A.S. Their mother is Annette Wiggins. K.J. and A.S. attend Oak Hill Elementary School ("Oak Hill"). During the period relevant to this proceeding, K.J. was enrolled in pre-kindergarten and A.S. was in kindergarten. During the latter part of September 2010, K.J. and A.S. were enrolled for day care at Tiny Blessings. Ms. Wiggins would normally drop off K.J. and A.S. at Tiny Blessings, and Tiny Blessings would transport the children to Oak Hill. Two days per week, Ms. Wiggins would pick up the children from school at the end of the day. Three days a week, Tiny Blessings would pick up the children when Oak Hill dismissed its students, and then Ms. Wiggins would pick up the children from Tiny Blessings. K.J.'s teacher at Oak Hill, Amalia Santiago, an autism specialist, testified that at the beginning of the school year, Ms. Wiggins was "heavily dependent" on the day care to provide transportation for the children. Ms. Wiggins works at Point West Cluster, a nursing home. Her regular work hours are from 7:00 a.m. to 3:30 p.m. Ms. Wiggins did not drop off her children at Oak Hill unless one of the children was sick, she was not working that day, or there was some special occasion. Ms. Wiggins testified that she always let Ms. Jackson and Ms. Santiago know whether she would be taking the children to Oak Hill. Ms. Santiago confirmed that Ms. Wiggins was scrupulous in informing her of the children's transportation arrangements. Ms. Santiago and Ms. Wiggins had a close working relationship because of their mutual concerns with K.J.'s autism. Ms. Santiago testified that in her experience, Ms. Wiggins had never dropped her children off at Oak Hill without personally leaving K.J. with her. Sharon McKahand is K.J.'s grandmother and Ms. Wiggins' mother-in-law. Ms. McKahand was sometimes responsible for picking up K.J. from school or from day care but never for dropping him off in the morning. Nancy Garrett is a fifth grade teacher at Oak Hill. She also is the extended day director at Oak Hill for early and after-school care. Ms. Garrett's responsibilities include overseeing children who are brought to Oak Hill between 7:00 a.m. and 8:05 a.m. because their parents have to go to work early. Ms. Garrett stated that there were approximately 55 children who stayed in early care during the early part of the 2010-2011 school year. Ms. Garrett is assisted by a paraprofessional named Barbara Johnson. Neither K.J. nor A.S. was enrolled in the early care program at Oak Hill. One day near the end of September 2010,5/ Ms. Garrett found K.J. and A.S. in a hallway at Oak Hill at a time close to 7:00 a.m. The children were not accompanied by an adult. Ms. Garrett did not know the children's names and had no idea how they got there. Philip Gardner, a special education teacher who specialized in autistic children, recognized K.J. and took the children to his classroom. Ms. Garrett noted that it was not quite light outside when the children were dropped off. She was there for early care, and Mr. Gardner was a well-known "early bird," but aside from them, there were very few people on the Oak Hill campus at seven in the morning. Ms. Garrett reasonably believed that because the children were "tiny," and K.J. had special needs, an adult should have been with the children. A couple of days later, Ms. Garrett was at Oak Hill at about the same time in the morning and heard "little knockings going on in the hallway." Upon investigation, she discovered K.J. and A.S. again alone in the hallway. This time, Ms. Garrett took the children to Ms. Santiago's classroom. Ms. Santiago and Ms. Garret asked the children who had dropped them off. K.J.'s language deficits were such that he was unable to answer. A.S. told Ms. Santiago that they had been dropped off by "the day care." Ms. Garrett then informed Ms. Santiago that this was not the first time she had found the children alone in the hallway. Ms. Santiago phoned Ms. Wiggins to alert her that her children had been found roaming the campus unattended and that A.S. said that the day care had dropped them off. Ms. Santiago testified that Ms. Wiggins was "livid" when she learned that her children had been wandering the campus unattended. Ms. Wiggins was at work when Ms. Santiago called her. Because she was unable to leave work to address the issue, Ms. Wiggins contacted Ms. McKahand and asked her to go to Oak Hill and make further inquiries into the situation. Ms. McKahand immediately went to Oak Hill. The receptionist at Oak Hill could not tell Ms. McKahand who had dropped off the children that morning. Ms. McKahand next went to Tiny Blessings. Ms. McKahand testified that Ms. Jackson stated that Tiny Blessings had dropped off the children that morning, but that they had dropped the children off on time and would never drop them off early. Ms. King testified that she learned of this incident while investigating a report that staff of the day care was physically abusive to a school-age child who arrived at Tiny Blessings early in the morning. Ms. King arrived at the day care early on the morning of October 13, 2010, to interview parents as they dropped off their children. She saw Ms. Wiggins dropping off K.J. and A.S. Ms. King noted that A.S. appeared to be of school age. She asked Ms. Wiggins whether the day care was transporting A.S. to school. This was significant to Ms. King because Tiny Blessings had told the Department that it did not provide transportation. Ms. Wiggins told Ms. King that Tiny Blessings had been providing school transportation for both children since the start of the school year. Ms. King then asked Ms. Wiggins if she had any concerns about the care her children received at Tiny Blessings. Ms. Wiggins proceeded to tell Ms. King about her children being dropped off at Oak Hill by Tiny Blessings and later being found wandering in the hallway at the school. Ms. King informed Ms. Wiggins that she would have to make other provisions for the transportation of her children to school, because Tiny Blessings did not have an employee who met the licensing standards to transport children. Ms. Wiggins told Ms. King that in that event she would remove her children from Tiny Blessings. With Ms. Wiggins' permission, Ms. King interviewed A.S., who told Ms. King that "Joe" drove her and K.J. to and from Oak Hill. Joseph Williams is Ms. Jackson's son and an employee of Tiny Blessings. Ms. King interviewed Mr. Williams, who admitted transporting children in his mother's vehicle but denied ever dropping off the children without ensuring they were released to school staff at the curbside pick-up and drop-off location. Ms. Santiago, who assisted in the curbside pick-up, recalled that a "young man" frequently picked up the children after school. Mr. Williams did not testify at the hearing. At the hearing, Ms. Jackson denied that Tiny Blessings ever dropped the children off early. Ms. Jackson testified that on many days the children could not have been dropped off early at school because Ms. Wiggins did not drop them off at Tiny Blessings until around 8:00 a.m. Ms. Jackson introduced Tiny Blessings' parent sign-in sheets for the period from September 20, 2010, through September 29, 2010. On September 20, Ms. Wiggins dropped off the children at 8:04 a.m. On September 21, 2010, Ms. Wiggins dropped off the children at 8:11 a.m. On September 22, Ms. Wiggins dropped off A.S. at 7:59 a.m.; the sheet indicated that K.J. was not dropped off at the day care. On September 23, the date that Ms. Santiago believed to be the second date on which the children were found wandering the school, Ms. Wiggins dropped off the children at 7:09 a.m. On Friday, September 24, Ms. Wiggins dropped off the children at 7:04 a.m. On Monday, September 27, Ms. Wiggins dropped off the children at 7:36 a.m. On September 28, Ms. Wiggins dropped off the children at 8:02 a.m. On September 29, Ms. Wiggins dropped off the children at 7:11 a.m. Ms. Jackson testified that on days when the children were brought to Tiny Blessings at around seven, they were given breakfast at the day care before being transported to Oak Hill. On days when Ms. Wiggins was running late, Ms. Jackson would drive the children directly to school. School staff persons would be waiting at the curb to take the children from the vehicle. Ms. Jackson testified that she had one child whom she had to pick up from the child's home no later than 7:30 a.m. By the time she returned to the day care at around 7:45, it would be time to transport school-age children such as A.S. Ms. Jackson stated that, within the strictures of her morning schedule, it would make no sense for her to drive K.J. and A.S. to school before 7:45 a.m. Ms. Jackson testified that on the days in question, Ms. Wiggins must have dropped the children off at school herself. She noted that on September 22, Ms. Wiggins had not dropped both children off at Tiny Blessings because K.J. was sick. It is problematic that the Department could not definitely state the dates on which K.J. and A.S. were dropped off at the school. However, the Department has proven facts sufficient to establish Tiny Blessings' responsibility for the incident. Ms. Garrett and Ms. Santiago were absolutely clear that both K.J. and A.S. had been dropped off early at Oak Hill and been found wandering the halls of the school. Ms. Garrett witnessed this situation twice within a few days. These teachers had no motive to invent such a story. Ms. Santiago testified as to the shock and anger registered by Ms. Wiggins when she learned that her children had been found wandering the school, and that Ms. Wiggins always came in and spoke to her when she dropped off her children at the school. Ms. Wiggins' testimony was credible and consistent with Ms. Santiago's observations. Ms. Jackson's own records established that Ms. Wiggins left both children at Tiny Blessings on each weekday morning between September 20 and 29, with the exception of September 22, when only A.S. was left at Tiny Blessings. Therefore, Ms. Wiggins could not have dropped off the children at Oak Hill at around 7:00 a.m. on any of those mornings. The children could only have been left at Oak Hill by Ms. Jackson or some agent of Tiny Blessings.6/ The Department did not prove that the children were dropped off at the school by Mr. Williams. The hearsay statements of Mr. Williams and A.S. are the only evidence supporting a finding that Mr. Williams drove the children to school. Though she denied that anyone at Tiny Blessings would ever drop off the children without supervision, Ms. Jackson testified that she did most of the driving in the mornings. Mr. Williams drove mostly in the afternoons, picking up the children from Oak Hill. Counts V, VI, and VII Ms. King followed up her October 13, 2010, investigation with a visit to Tiny Blessings on October 14. During the follow up visit, Ms. King observed an individual named Trameka Monroe supervising the one-year-old children. Ms. King did not recognize Ms. Monroe and requested to see her personnel folder. The personnel folder showed no documentation that Ms. Monroe had undergone an employment history check, a part of the background screening the Department requires of child care personnel. Also, Ms. Monroe's folder contained no documentation of the required FBI/FDLE criminal records clearance. Ms. Jackson testified that Ms. Monroe had obtained background screening and that her local law enforcement clearance and FDLE/FBI clearance had been completed on October 13, 2010. She introduced a document produced by the Department stating that it had received Ms. Monroe's complete criminal history records and found nothing that would disqualify her from working for Tiny Blessings. The letter stated: "RESULTS VALID AS OF: 10/13/2010." However, the document also stated: "PLEASE BE ADVISED THAT LOCAL LAW ENFORCEMENT CHECKS WERE NOT INCLUDED IN THE DETERMINATION/PROCESS." No evidence was presented that Ms. Monroe's background screening was ever fully completed. Ms. Jackson did not provide an employment history for Ms. Monroe. Ms. Jackson testified that Ms. Monroe was so anxious to start work at Tiny Blessings that she personally went to the Department's office on October 13 to have her background check completed. Ms. Jackson stated that the morning of October 14 was Ms. Monroe's first day on the job, and that it was a coincidence that this was the day Ms. King arrived at the facility. Ms. Monroe did not testify at the hearing. In the absence of any information in the personnel file confirming the status of Ms. Monroe's background screening, Ms. King instructed Ms. Monroe to leave the premises, which she did. Ms. Jackson testified that Ms. Monroe never came back "because of how rude Ms. King was." Ms. King also observed that the personnel file for employee Sarra Brown was incomplete. Ms. Brown had been employed previously at Tiny Blessings, but at some point she had been terminated and then rehired. Ms. Jackson provided no records to show the dates of the prior employment or how many days elapsed from the day Ms. Brown was fired to the date she was rehired. Florida Administrative Code Rule 65C- 22.006(4)(e)6. provides that child care personnel must be re- screened following a break in employment in the child care industry that exceeds 90 days. Because Ms. Brown's file lacked an employment history, Ms. King was not able to determine whether or for how long Ms. Brown had been out of the day care industry. Ms. King required Ms. Brown to leave the premises. The personnel files of both Ms. Monroe and Ms. Brown were missing completed Form 5131 and CS-FSP 5337, "Child Abuse & Neglect Reporting Requirements" ("Form 5337"). Ms. Monroe's file lacked the forms entirely; Ms. Brown's forms were incomplete. Ms. Brown later completed the forms in her file. Ms. Monroe did not complete the forms, possibly because she never came back to Tiny Blessings after Ms. King directed her to leave on October 14.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order imposing a fine of $1,225.00 upon Lawanda Jackson d/b/a Tiny Blessings, and suspending License Number C04DU0799 until such time as the Department grants Lawanda Jackson an exemption from disqualification pursuant to section 435.07, Florida Statutes. DONE AND ENTERED this 12th day of December, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2011.
The Issue The issue in this proceeding is whether Petitioner's application for licensure as a child care facility should be granted.
Findings Of Fact Petitioner, God's Little Blessings, applied for licensure as a child care facility on March 23, 2015. The application was completed and submitted by Leslie Fudge, the owner and proposed operator of the facility. The proposed director was Adrienne Wimas (spelling uncertain). After review of the application, the Department denied Petitioner a child care facility license on May 1, 2015. The sole reason for the denial was contained in the Department's denial letter dated May 1, 2015. The letter stated: This letter will serve to advise you that your Application . . . is hereby denied based on review of your background screening, including the Florida Central Abuse Hotline Record Search. No other reason for denial was stated in the Department's letter. While not stating the specific facts regarding the background screening and abuse record search, the evidence demonstrated that the denial was based on one confirmed report of neglect (Abuse Report 2003-031849-01) against Ms. Fudge for inadequate supervision of resident R.H., and medical neglect of residents R.G. and J.D. Both incidents occurred at about the same time on or about March 5, 2003, while Ms. Fudge was employed at Tallahassee Development Center (Center). The Center provided residential and direct care to developmentally disabled residents at its facility. At the time, Ms. Fudge was employed as care staff responsible for providing direct one-to-one care to R.H. She was not assigned to provide care to R.G. Other than Ms. Fudge, no witness with personal knowledge of these incidents testified at the hearing. Consequently, many of the statements contained in the 2003 abuse report remain hearsay which was not corroborated by any competent substantial evidence. Additionally, the age of the report, confusing allegations and lack of factual basis for its findings of inadequate supervision or medical neglect cause the abuse report to be unreliable and untrustworthy as evidence. As such, except as found below, the report by itself cannot form a basis for denial of Petitioner's application. Ms. Fudge was the only person who testified at the hearing with personal knowledge about the events of March 5, 2003. She testified, and such testimony is accepted, that on or around March 5, 2003, she was not a shift supervisor, but was assigned as a direct care aide with "one-to-one" supervision of R.H. The testimonial evidence from Ms. Fudge and other employees of the Center during 2003 demonstrated that Tallahassee Developmental Center employees were trained that one-to-one supervision meant that "the person had always to be watched" and "you could never leave [the person] alone." There was no credible evidence that the person could not be alone in the restroom, that the staff assigned to watch the person had to be within arm's length of the resident, or that such observation was not varied according to the behavior plan for an individual resident. Further, the testimonial evidence showed that staff and Ms. Fudge knew R.H. would run away usually to hide in a particular office, but occasionally with the police being called if R.H. were to leave the building and could not be found. The evidence did not demonstrate that R.H. behaviorally was aggressive or dangerous to others, but only that he would run away and hide. Finally, the testimonial evidence showed that the facility was in the process of trying to wean R.H. off of one-to-one supervision by implementing a plan of moving away from him and permitting him times of less supervision. On March 5, 2003, the testimonial evidence demonstrated that Ms. Fudge, R.H., and other residents were gathered in the living room of the house where they lived. The phone in the adjoining office rang and Ms. Fudge answered it. While on the phone she could observe R.H. through the window between the rooms. At some point, R.H. was sent to go to the restroom. It was unclear who sent him. After finishing in the restroom, he did not return to the living room, but "left out of the bathroom" to another office, locked the door and hid behind the desk. Ms. Fudge could see him in the office and called a nurse to bring the key so that the office could be unlocked. At the time, R.H. was not in danger and there was no evidence that demonstrated he was in danger. There was some evidence that another staff person mistakenly may have believed that R.H. had left the building. However, the better evidence showed that Ms. Fudge knew where R.H. was, could see R.H. in the room in which he was locked, and that he was not in danger at the time. Given R.H.'s behavior plan, none of these facts establish neglect by Ms. Fudge in the supervision of R.H. There was no credible, non-hearsay evidence presented at hearing as to the abuse report's allegations regarding resident R.G. or J.D. As such, the Department's evidence consisted only of an old unreliable abuse report consisting of uncorroborated hearsay about an incident involving R.G. and perhaps J.D. and the testimony of the investigator who had no personal knowledge of the facts regarding the incident or the supervisory policies of the Center. Given these facts, Respondent has failed to demonstrate that Ms. Fudge neglected, either in supervision or medically, residents who were in her care. In fact, the evidence showed that Petitioner has been caring for and/or supervising people for many years and has the character and capacity to continue to do so. Since the unproven abuse report was the only basis on which the Department based its decision to deny Petitioner's application, there was nothing in the record to support its determination that Petitioner lacked moral character or the ability to safely operate a child care facility. Therefore, Petitioner's application for such licensure should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner's application for licensure as a child care facility is granted. DONE AND ENTERED this 2nd day of November, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2015. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Building 2, Suite 204 Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 (eServed) Leslie Fudge God's Little Blessings Apartment F-8 216 Dixie Drive Tallahassee, Florida 32304 Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308-5333 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families 1317 Winewood Boulevard, Building 2, Room 204 Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families 1317 Winewood Boulevard, Building 1, Room 202 Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Respondent, a day-care center, committed the violations alleged in the Administrative Complaint, and if so, the penalties Petitioner should impose against Respondent.
Findings Of Fact Petitioner is the regulatory authority responsible for licensure and enforcement of day-care centers in Florida. Respondent is a day-care center in Miami, Florida, and currently holds child care license C11MD0340. Respondent has operated as a day-care center since April 19, 1990. At the time of the formal hearing, Kevin Lennon was the owner and operator of Respondent. S.B. and L.B. are young sisters who stayed at Respondent’s day-care center in July 2014. On July 9, 2014, one of Respondent’s employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. Mr. Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister’s share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Petitioner offered no competent, credible evidence to refute Mr. Lennon’s testimony. On March 25, 2014, Petitioner received from Respondent an “Application for a License to Operate a Child Care Facility” (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon’s signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran’s notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. Petitioner offered insufficient evidence to refute that testimony. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon’s signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran’s notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as “Kevin Lennon.” Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Petitioner offered no competent, credible evidence to refute that testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 9th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2015. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street, Suite 210 Miami, Florida 33156 (eServed) Karen A. Milia, Esquire Department of Children and Families 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 (eServed) Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399 (eServed) Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
