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.
Findings Of Fact A Petitioner was tried and found guilty of a violation of Section 794.011, Florida Statutes, related to sexual battery. This finding was in the case of State of Florida vs. Claude Hiller Barton, in the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 85-5199CF. On June 30, 1986, he was sentenced to life with a minimum 25 year mandatory service. He took appeal to the District Court of Appeal, First District, State of Florida, and in the action of Claude Hiller Barton, Appellant vs. State of Florida, Appellee, Case No. BO-45 and by opinion filed September 25, 1987 the judgement and sentence was responded to by per curiam affirmance. The mandate to the Circuit Court concerning disposition of the appeal in Case No. BO-45, was issued on October 13, 1987. Following his conviction, Respondent, by correspondence of May 23, 1986, noticed the Petitioner of his disqualification from continuing employment in a position as a person who works with children. The correspondence reminded the Petitioner of his right to request an administrative hearing to contest the disqualification. It further stated that given that the Petitioner had been convicted of a felony that he was not entitled to exemption from disqualification and could only challenge the accuracy of the records pertaining to his conviction. The case was forwarded to the Division of Administrative Hearings for consideration through a formal hearing. At the instigation of the Petitioner and with concurrence of Respondent consideration of this dispute was forestalled pending the outcome of the appeal. The existence of the September 25, 1987 opinion of the First District Court Appeal which affirmed the judgement and sentence was first revealed at the final hearing on August 14, 1990. Prior to that occasion numerous attempts had been made to have the parties provide status reports in the administrative case concerning the outcome of the appeal as reflected in the file in this action, to no avail. Having been unsuccessful in pursuing his ordinary remedies related to the criminal court case, Petitioner sought extraordinary relief through a writ of habeas corpus alleging ineffective assistance of appellate counsel. This was in the action of Claude Hiller Barton, Petitioner vs. Richard Dugger, Secretary, Florida Department of Corrections and the State of Florida, Respondents, in the District Court of Appeal, First District, Case No. 89-02677. That petition was denied by order of February 7, 1990, and a motion for rehearing was denied on March 16, 1990. Petitioner has made a further attempt to gain relief based upon a claim of ineffectiveness of the counsel employed to pursue his original petition for writ of habeas corpus. Acknowledgment of receipt of the most recent petition for writ of habeas corpus was provided on August 10, 1990 from the Clerk of the First District Court of Appeal.
Recommendation Based upon a full consideration of the facts found and of the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which establishes the disqualification of the Petitioner from acting as a person who is considered as child care personnel at a child care facility or child care program. DONE and ENTERED this 24th day of October, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1990. COPIES FURNISHED: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Charlene J. Petersen, Esquire HRS-District 4 Legal Office 5920 Arlington Expressway Post Office Box 2417 Jacksonville, FL 32231-0083 Claude Barton, #103199 Union Correctional Institution Post Office Box 221 Raiford, FL 32083
The Issue Whether Respondent should continue to allow the Bambi Day Care I child care facility to remain open for business.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Bambi Day Care I (Facility) is a child care facility located in Miami-Dade County. At all times material to the instant case, Mercedes Arabi has been the director of the Facility. Ms. Arabi does not now have, nor has she ever possessed, a director credential issued by Respondent. Although she has attempted to obtain such a credential, she has not been able to meet the credentialing requirements. On or about August 13, 2003, Respondent sent to the Facility (by certified mail, return receipt requested) a form letter advising of the following: The deadline for the Director's Credential is January 1, 2004. This is mandated by Chapter 65C-22, Florida Administrative Code. Each child care facility must have a director that meets this requirement by January 1, 2004. Failure to comply will affect your licensure status seriously. If you have already completed the Director Credential requirement, please disregard this letter and mail or fax immediately a copy of your certificate for your licensing record. (Include the name of your facility.) The same letter was sent to all other licensed child care facilities having an uncredentialed director. The letter was delivered to the Facility on August 21, 2003. Not having received any indication that Ms. Arabi had obtained the required director credential, Respondent, on or about January 16, 2004, changed the Facility's licensure status by issuing a provisional license, effective from January 2, 2004, through July 2, 2004, authorizing the Facility's operation. As of July 2, 2004, Ms. Arabi still had not become credentialed. Accordingly, on that date, Respondent advised her that it "intended to revoke [her] license to operate [the Facility]." Ms. Arabi requested an administrative hearing on the matter. Notwithstanding that the expiration date on the Facility's provisional license was July 2, 2004, Respondent has affirmatively allowed the Facility to continue to operate pending the outcome of Ms. Arabi's challenge to the revocation action announced in Respondent's July 2, 2004, letter. In doing so, it has effectively extended the life of the Facility's provisional license (which, for all intents and purposes, remains in existence).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a Final Order revoking its permission allowing the Facility to operate as a child care facility. DONE AND ENTERED this 27th day of December, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 27th day of December, 2005.
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 The issue in this case is whether Respondent should approve Petitioner's registration to operate a family day care home.
Findings Of Fact The Parties Petitioner is a 25-year-old female who admittedly has been providing unlicensed child day care in her home for the past several years. While she has no formal training in child care, she has been employed in the child care field for many years and obtained her GED in 1995. Petitioner has been married to her husband, A.P., for six years, and they live together. Respondent is the state agency responsible for regulating child care facilities pursuant to Chapter 402. The Application On September 18, 2002, Petitioner submitted an application to Respondent seeking licensure to operate a registered family day care within her home located at 6351 Redwood Oaks Drive in Orlando, Florida. Respondent processed the application and effectuated the required background screening of the individuals living within the household, including Petitioner and A.P. The screening of Petitioner revealed that on October 3, 2000, a young girl, living within Petitioner's home and under her supervision, was removed following a report to the abuse hotline and the subsequent investigation by Donald Griffin, a protective services investigator employed by Respondent. The screening of A.P. revealed that he was arrested in October 2000 on charges of lewd, lascivious assault or act on a child; prostitution; lewd or lascivious molestation; renting space to be used for prostitution; and lewd or lascivious conduct. The screening further revealed that on May 15, 2002, the State Attorney's Office determined that the case was not suitable for prosecution and filed a "No Information Notice." Upon receipt and consideration of the screening results, Respondent denied Petitioner's application on January 23, 2003, advising her that: . . . the Department is unable to approve your application to operate a family day care due to safety concerns for children that may be placed under your care for the following reasons: Background screening revealed that a child was removed from your care following an allegation of abuse or neglect. Background screening revealed that a member of your household lacks moral character due to their arrest record involving minors which would place the children at risk of harm. With respect to Petitioner's screening results, Petitioner admits that a child was removed from her home, but alleges that the removal was at her request. Petitioner denies any allegation of abuse and insists that the removed child, her friend's daughter, was "extremely unruly and too difficult to handle." As a result, Petitioner claims that she requested that Respondent remove the child and Respondent complied. Respondent's investigator, Mr. Griffin, testified otherwise. Investigator Griffin stated that he personally investigated Petitioner following a report to Florida's child abuse hotline. He separately interviewed both Petitioner and the child and noticed clear bruises and welts on the child. Investigator Griffin determined that Petitioner's home was not suitable for the young girl and removed her from the residence. Mr. Griffin's testimony was more credible. No evidence was offered to support Petitioner's assertion. With respect to the screening results of A.P., Respondent presented compelling evidence that A.P. lacks the requisite good moral character. First, Respondent demonstrated and Petitioner admits that A.P. occasionally gets angry and lacks self-control. In fact, the local police department has responded to domestic disturbance calls from the family home on at-least two occasions. In addition, the evidence surrounding A.P.'s arrest demonstrates that A.P. lacks good moral character. Specifically, A.B., the alleged victim of A.P., credibly testified at hearing that in October 2000, at age 12, she and her minor female friend, L.M. were walking near their school during the early evening when an unknown black male, later identified as A.P., driving a green sports utility vehicle, offered them a ride. The female minors entered his S.U.V. and were taken to a convenience store and then to a hotel. A.B. testified that while in the hotel room, the male inappropriately touched her butt, pushed her on the bed and solicited her to have sex with him for money. A.B. said "no" to his offer and asked him to stop. Shortly thereafter, the male departed the hotel and abandoned the girls in the hotel room with the room key. The police were contacted and investigator Rick Salcido conducted an investigation. After interviewing the girls, Mr. Salcido acquired physical evidence at the hotel linking A.P. to the room and supporting A.B.'s allegations. He retrieved a copy of A.P.'s driver's license and hotel credit card used at check-in from the hotel manager. In addition to the physical evidence linking A.P. to the hotel, A.B. positively identified A.P.'s photo as the perpetrator. Moreover, the investigator determined, and Petitioner admits that A.P. owned and drove a green sports utility vehicle at the time of the alleged incident. While Petitioner asserts that she and A.P. were out of town and on vacation on the date of the incident, she admits that they returned home at approximately 7:00 p.m. that evening. Although A.P. was subsequently arrested, the State Attorney's Office later declined to prosecute and filed a "No Information Notice." At hearing, counsel for A.P. indicated that the statute of limitations had not expired and A.P. invoked his Fifth Amendment privilege to remain silent. A.P. declined to testify and answer questions related to his moral character and the circumstances of his arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for a registration to operate a child care facility. DONE AND ENTERED this 29th day of August, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 29th day of August, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Jeremy K. Markman, Esquire 800 North Ferncreek Avenue Orlando, Florida 32803 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact In March of 1987, the Petitioner, Mitchell M. Green, was employed with the Department of Health and Rehabilitative Services as a child support enforcement investigator. He had been employed by the Department since 1982. On March 17, 18 and 19, 1987, the Petitioner did not report for work, and did not call in to any of the persons who supervised him to explain his absence. Previously, the Petitioner had not requested leave for March 17-19, and leave had not been authorized. On March 20, 1987, the Department notified the Petitioner that his failure to report for work on March 17, 18 and 19 when he was scheduled to work, without contacting his supervisor, and without authorized leave, constituted abandonment and resignation from the position under Rule 22A-7.010(2), Florida Administrative Code, and that his employment was terminated. The Petitioner was aware of the abandonment provision in the Department's rules. He had acknowledged receipt of a copy of the Department handbook containing these rules on July 8, 1986. The testimony of the Petitioner, his father, and his mother established that the Department had given the Petitioner an "Exceeds Performance Standards" rating on his last evaluation, that the Petitioner had been diagnosed as having cancer in February of 1985, that the Petitioner had requested leave in January, 1987, but was refused because he had no more leave, and that the Petitioner was upset about conditions at work. These factors are irrelevant, however, because they do not excuse or justify a failure to report to work without obtaining authorized leave or notification that assigned work will not be performed because of absence.
The Issue The issues to be determined are whether Respondent committed the violations as alleged in the Administrative Complaint (AC), and, if so, the appropriate penalty.
Findings Of Fact DCF is the state agency responsible for licensing child care facilities and enforcing regulations to maintain the health, safety, and sanitary conditions at those facilities operating in the State of Florida. See §§ 402.305-.311, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010. In order to fulfill its regulatory duty, DCF conducts complaint and routine inspections. The factual allegations, as stated in the AC, provide the following: a. On December 20, 2018, the Department received an allegation that the owner/ director of the facility hit a child on the face with a ruler and slapped him. The teacher also hit another child on the chest with a ruler and that a child had slight bruising and a round scratch under his left eye. The Department conducted an investigation into these allegations starting on December 28, 2018. At the conclusion of the investigation, the Department determined the facility committed Class I violations of child care facility standards for child abuse and unscreened individuals. Licensing Counselor, Tiffani Brown, along with a Child Protective Investigator (CPI) Barbara Smith commenced their investigation on December 28, 2018, after the facility reopened from the holidays. They met with the owners [sic] daughter, Danita Gaines and spoke to the owner via the phone. While at the facility, Counselor Brown questioned Anthony Council, who stated he does help take care of children. Mr. Council was located in a room with children present. Mr. Council is not background screened and was ordered to leave. The owner, Cloe Gaines was on vacation and would not return until 1/2/19. Counselor Brown and CPI Smith returned to the facility on 1/2/19 to speak to the owner. Ms. Cloe Gaines was interviewed, and she stated she is a foster parent. Due to the allegations, Ms. Cloe Gaines was handed a restriction letter, which she signed and left the facility. Counselor Brown and CPI Smith interviewed Ms. Cloe Gaines [sic] foster children. The first foster child, G.M. said for punishment Ms. Cloe Gaines makes him go to sleep. The second foster child, M.M. continued to nod her head indicating yes when asked if he gets spanked for punishment. Counselor Brown and CPI Smith interviewed four other children at the facility. The first child, A.J. stated that Mrs. Cloe whips them with a belt or ruler on the arms and hands. The second child, A.J. stated that Mrs. Cloe hits people if they be bad. The third child, O.E. said that Mrs. Cloe hits them if they are bad with a blue ruler that she keeps in her desk. The last child, T.J. stated that they get hit with a pink and purple ruler that is kept in the classroom. The children were taken to be interviewed by the Child Protection Team for forensic interviews, which were again verified. Based upon the factual allegations in paragraph 3 above, the AC asserts that those allegations constitute the following Class I violations: a. On January 4, 2019, Anthony Council, is an unscreened individual who was left alone to care for children, in violation of Section 435.06(2)(a), Florida Statutes. This constitutes a Class I violation of Child Care Licensing Standard, CF-FSP Form 5316, 4-18, October 2017, incorporated by reference, 65C-22.010(1)(e)l, F.A.C. b. The owner, operator, employee or substitute, while caring for children, committed an act or omission that meets the definition of child abuse or neglect as provided in Chapter 39, Florida Statutes in that four children disclosed child abuse at the hands of the owner Cloe Gaines. A.J., A.J., O.E., and TJ. [sic] disclosed that they are victims of child abuse by Ms. Gaines when she hits them with belts and rulers as a form of discipline in violation of CCF Handbook, Section 8.2, A. This constitutes four (4) Class I Violations of Child Care Licensing Standard, CF-FSP Form 5316, 47-02 and ll-06, October 2017, incorporated by reference, 65C- 22.010(1)(e)1, FAC. Respondent was licensed by DCF to operate a child care facility located at 1550 King Street, Cocoa, Florida. During the hearing, it was disclosed that the Academy had been closed for at least a month. Cloe Gaines (Ms. Gaines) is the owner/director of the Academy. Danita Gaines, Ms. Gaines’ daughter, has worked at the Academy since 2015 as a teacher in the two-year-old classroom. Anthony Council is Ms. Gaines’ grandson and performed maintenance several times at the Academy when asked to do so by Ms. Gaines. Additionally, Mr. Council has a son who attended the Academy. On December 20, 2018, DCF received allegations that Ms. Gaines had hit a child on the face with a ruler. On December 21, 2018, DCF attempted to investigate the alleged child abuse complaint. However, the Academy was closed for winter break, and scheduled to reopen on December 28, 2018. Child Protective Investigator (CPI) Smith, a 13-year DCF employee, located two of the alleged victims of the Academy at their respective homes on December 21, 2018. CPI Smith interviewed B.T., a four-year-old male, who stated that he and his cousin, T.J., were arguing at the Academy. Ms. Gaines called on them and she struck B.T. on the face with a ruler, which caused B.T.’s face to bleed. B.T. stated that T.J. raised his arm in front of his chest and T.J. was struck on his arm. Based on B.T.’s comments, CPI Smith requested that B.T. be taken to the Children’s Advocacy Center of Brevard (CACB) for a video-recorded interview. During the video-recorded interview, B.T. was forthcoming about the injuries he sustained at the Academy. B.T. again stated that he and T.J. were arguing and playing, and Ms. Gaines hit him (B.T.) on the face with a ruler, which caused his face to bleed. B.T. said Ms. Gaines gave him a band-aid for his face. Pictures taken of B.T. on December 21, 2018, show the injuries B.T. sustained. CPI Smith substantiated or verified the abuse of B.T. by Ms. Gaines. B.T. also told CPI Smith where Ms. Gaines kept the ruler she used to hit him. When CPI Smith returned to the Academy, she located the blue ruler in Ms. Gaines’ desk drawer. Another alleged victim, T.J., was also interviewed at his residence on December 21, 2018. T.J. recounted that he and B.T. were playing and fighting when Ms. Gaines called them. T.J. provided that Ms. Gaines hit B.T. on the face, and that he, T.J., was hit on the arm with a ruler. CPI Smith was unable to substantiate abuse of T.J. because there were no physical indicators on T.J. at the time of the interview. CPI Smith and Tiffani Brown, a DCF child care regulation counselor and licensing counselor, returned to the Academy when it reopened on December 28, 2018, to investigate the child abuse allegations. Ms. Gaines was not present, but the DCF employees spoke with Danita Gaines, who said Ms. Gaines was on vacation and would return on January 2, 2019. The two DCF employees returned to the Academy in January 2019. When CPI Smith returned to the Academy, she interviewed two other alleged victims, twins A.J. and AK.J. AK.J., the male twin, provided that Ms. Gaines was mean, whips students on the arms and hands, and will make them stand by the wall with their hands raised over their heads. As a result of his interview at the Academy, AK.J. was asked to go to the CACB for a video- recorded interview. A.J., the female twin, stated that Ms. Gaines hit her (A.J.) on her hands and arms with the ruler, and makes them (the children) stand beside the wall, “if they be bad.” CPI Smith asked that A.J. be taken to CACB for a video-recorded interview also. In AK.J.’s video-recorded interview, he provided the name of his favorite Academy teacher, but stated that he did not like Ms. Cloe (Ms. Gaines) because she was mean and “pops” people with a ruler. AK.J. said he was scared of Ms. Gaines; the ruler was hard; and it hurt when he was struck. During A.J.’s video-recorded interview, she recounted that Ms. Gaines and her daughter, “Ms. Danita,” were mean. A.J. also stated Ms. Gaines “whooped” her (A.J.) with a ruler and at times Ms. Gaines made all the children stand at the wall with their hands raised over their heads. On January 2, 2019, Counselor Brown, a DCF employee of nine years, observed Mr. Council walking outside the Academy with several students following him. Mr. Council does not have the required background screening approval to care for children in a daycare setting, and a background screened teacher was not present when Counselor Brown first observed Mr. Council. The background screened teacher appeared a minute or so later. During the hearing, Mr. Council provided that he was at the Academy daily, either dropping off or picking up his son. Mr. Council further testified that he performed various maintenance tasks that Ms. Gaines asked him to perform, such as changing filters for the air-conditioning vents and policing the playground, all while children were present. Mr. Council admitted that Ms. Gaines had told him (Mr. Council) to get the required background screening completed, but he had not done so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order revoking the license of CG Academy. DONE AND ENTERED this 4th day of June, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 4th day of June, 2019.
