The Issue The issues in this case are whether Respondent violated the provisions of Florida Administrative Code Rule 65C-22.001(11) (2013),2/ as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by Respondent. It is the Department’s responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department inspects each licensed day care center several times a year. In the event of a complaint, additional inspections and/or investigations are conducted. Respondent is a licensed child care facility located in Manatee County, Florida. On October 12, 2017, Ms. Linzmayer received a complaint from an anonymous source who said she worked at the Academy. As a result of that complaint, Ms. Linzmayer was prompted to call the Department’s abuse hotline. Ms. Clark was working as an investigator for the Manatee County Sheriff’s Office, Child Protective Investigation Unit in October 2017. When notified of the potential abuse allegation, Ms. Clark conducted an investigation on October 12, 2017. The scope of Ms. Clark’s investigation centered on the allegations that a teacher had hit a child in the mouth. Ms. Clark spoke with employees at the Academy and then met with the alleged victim (A.O.) and the child’s family at a local law enforcement office. Ms. Clark’s investigation did not substantiate the case (of actual abuse) because she did not have proof that something did or did not happen. Ms. Clark notated that the Academy had not contacted the abuse hotline regarding the suspected child abuse and there was no incident report.4/ Ms. Barna-Roche conducts health, safety, routine and renewal inspections, as well as complaint inspections of child care facilities. After receiving the hotline abuse allegation, Ms. Barna-Roche inspected the Academy and spoke with several of its employees. As a result of her inspection, Ms. Barna-Roche found that the Academy failed to report the alleged child abuse. The only first-person account of the alleged classroom events of October 6, 2017, was provided by Ms. Gonzalez, a former teacher at the Academy. Ms. Gonzalez was in the two-year-old classroom, with another teacher, Ms. Tover. Ms. Gonzalez credibly testified that she did not “pop” a child in the mouth, and that she had never told Ms. Tover she had “popped” or used physical or inappropriate force relative to A.O. Ms. Gonzalez provided a brief history of her association with Ms. Tover, which was unflattering to both. For a time Ms. Gonzalez lived in the same house with Ms. Tover and members of Ms. Tover’s family. A disagreement arose regarding Ms. Gonzalez’s dog, and Ms. Gonzalez was asked to leave the house. In order to gather her belongings from the house, Ms. Gonzalez was forced to call law enforcement for assistance. This disagreement appears to have spilled over to the Academy, where both women worked. As part of her supervisory duties, Ms. Johnson (also known as Ms. Charlotte or Charlotte Hill) makes it a point to observe the children as they enter and leave the Academy. She conducts these observations in order to address any potential issues regarding a child’s well-being and to provide excellent service to the children and their parents in the care provided. Ms. Johnson was not in the two-year-old classroom on October 6, 2017, but observed the children entering and leaving the Academy that day. Ms. Johnson did not see the alleged abuse victim, A.O., with a fat or bloody lip as he left Respondent’s facility on October 6, 2017. Ms. Johnson was aware that Ms. Gonzalez had lived in the same house as Ms. Tover and her sister, and Ms. Johnson knew that Ms. Gonzalez moved out of the house prior to October 2017. Ms. Johnson was aware of some interpersonal issues between Ms. Tover and Ms. Gonzalez that were not associated with the Academy. Both Ms. Gonzalez and Ms. Johnson acknowledged being mandatory reporters, and clearly testified that had either seen or thought there was abuse, they would have reported it. As alleged in paragraph 4 of the AC above, in one instance Ms. Tover is alleged to have “witnessed another teacher ‘popping a child on the mouth’ and informed the child’s grandmother, who also works at the facility.” Yet, in paragraph 5 of the AC, Ms. Tover “confirmed her account of the alleged abuse. At the time of the incident, she turned around when she heard a child crying.” (emphasis added). Ms. Tover did not testify at hearing. There is no evidence that any abuse occurred. The testimony provided by Ms. Linzmayer, Ms. Clark, and Ms. Barna-Roche relies upon hearsay, and in some cases hearsay upon hearsay. Their testimony is found to be insufficient to meet the burden in this proceeding. The lack of direct evidence of the alleged abuse is troublesome. The indication that Ms. Tover “witnessed” the abuse or turned around after she heard a two-year-old child cry and was told something occurred is insufficient to overcome the direct testimony of the alleged perpetrator, who denied the accusation. It is true that additional training in spotting child abuse or suspected child abuse, and reporting such abuse or suspected child abuse is warranted at the Academy; however, the evidence is not clear and convincing that any abuse, real or suspect, occurred on October 6, 2017.
Recommendation Upon consideration of the evidence and testimony presented at the final hearing, and 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 25th day of April, 2018, 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 25th day of April, 2018.
The Issue Whether the Department of Children and Family Services (Department) properly denied the renewal of Clay and Diana Merritt's family foster home license, No. 019917.
Findings Of Fact The Department of Children and Family Services is the administrative agency responsible for the licensing of foster homes under the laws of the State of Florida. The Department is responsible for investigating allegations of child abuse against citizens of the State of Florida. The Respondents, Clay Merritt and Diana Merritt were the holders of a foster care home license which was issued by the Department on January 27, 1997. That license was renewed in 1998 and provisionally renewed in 1999. During the period of time that the Respondents were a legally licensed foster home, three different children resided in their home, Amy C., Bo T. and Joe H. On January 27, 1999, an argument ensued between Respondents and Amy C. over Amy C.'s returning late from a date. During that argument, Amy stated that she would report the Merritts for sexual abuse if they did not relax their restrictions upon her. When the Respondents refused to relax their restrictions, Amy C. requested that she be removed from the home. The Department was called and Amy C. was removed from the foster home, and placed in a facility for run-a-way children in Gainesville, Florida. Very soon thereafter, Amy C. alleged that she had been sexually abused by the Respondent, Clay Merritt, on three occasions, all of which included sexual intercourse. The Respondent, Clay Merritt, denies the allegations in their entirety. Amy C. had been a prior victim of sexual abuse by her father, her brother, and her half brother. Amy C.'s father and her brother were convicted of sexually abusing her, and her father is still incarcerated. Amy C. testified at her father's criminal trial. Because of her prior abuse, Amy C. suffers from a number of mental disorders, to include post-traumatic stress syndrome, dysthymia, and attachment disorder. The child further evidences self-destructive behavior and vindictive behaviors against others. Susan Pierce counseled Amy C. for approximately nine months from early 1998 until the end of January of 1999. During that period of time, she developed a close therapeutic relationship with the child, and believed that the child was comfortable with her as a therapist. During that nine-month time period, the child never made any allegations of sexual abuse against the Respondent, Clay Merritt, although she discussed other instances of abuse with the counselor unrelated to the Respondents. Ms. Pierce felt Amy C. would have revealed abuse by Clay Merritt had such abuse occurred. The child lied on numerous occasions to her counselor and the Respondents. The child became increasingly interested in psychopathic murder, which was indicative of the disorders that were suffered by the child in Pierce's opinion. The child stated that she had been sexually abused by Clay Merritt in July, August, and September of 1997 and had a miscarriage in November or December of 1997. However, her diaries indicate that she had menstrual periods on October 25th and November 14th, 1997, thus precluding the possibility of pregnancy. The child further testified that the miscarriage was one of the most painful things she had ever encountered. The child stated under oath that she had not reported the miscarriage because "she did not want to hurt Diana's feelings." She stated to investigators that she did not report the abuse because she did not want to be taken out of the foster home. Throughout the period of time that Amy C. resided with the Respondents, she was a discipline problem. In June of 1998, Respondent, Diana Merritt, discovered Amy C. at home one afternoon with a boy with whom she had just completed having sexual intercourse. Diana Merritt took Amy C. to medical professionals for pregnancy testing and tests for sexually transmitted diseases. Diana Merritt counseled with Amy C. about the dangers of her conduct, and the Merritts maintained a closer watch upon the child. Amy C. refused to comply with the requests of the Respondents to restrict her sexual activities which led to numerous disagreements and arguments with Amy C. These arguments culminated in the argument of January 27, 1999, which resulted in Amy C.'s removal from the home. Amy C. was asked to take a voice stress test by the Sheriff's department, but she declined. The statements of Amy C. are contradictory with regard to specific facts. She gave two different dates for her alleged miscarriage: June and November 1997. She described severe physical trauma associated with the alleged miscarriage, but did not seek or receive medical assistance. She was subsequently examined and tested for sexually transmitted diseases as the result of an unrelated, consensual sexual relationship, and no findings were made indicating a prior, terminated pregnancy. Amy C.'s diaries are vague and unrevealing, except for the reporting the commencement of a menstrual period in October and in November. This is inconsistent with a reported miscarriage in December 1997. Because of the Amy C.'s prior abuse, resort to physical examination, or her description of details about the encounter is not helpful in resolving the her credibility. The allegations by Amy C. of sexual abuse by Clay Merritt are unsupported by any tangible evidence. Amy C.'s reputation for truth and veracity is not good. Her allegations are not supported by her diaries. Her allegations were made almost one and one-half years after the alleged events, and immediately after a fight with the Merritts. The Department's investigation revealed that the Merritts had spanked one of the other children on occasion in contravention of a Department policy banning corporal punishment. The Merritts did not deny this allegation; however, there was no evidence that these spankings were abusive. The spanking was a violation of agency policy; however, testimony was received that this type of conduct was generally not a basis for revoking a license by itself. The Respondent, Diana Merritt, is a licensed practical nurse who is employed by the Putnam County health Department. She has no prior criminal record, no prior child abuse record, nor has she had any legal difficulties in her life. The Respondent, Clay Merritt, is employed as a paramedic and firefighter. He is certified as a paramedic. He has never been arrested nor had any child abuse allegations filed against him in his entire life. The guardian ad litem for Bo T. testified that Bo T. was suffering as the result of his removal from the Respondents' home. Bo T. was the child who was spanked. His guardian ad litem favored placing the child back in the Merritt's home and care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order renewing the foster home license No. 19917 of the Respondents. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2000. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Richard J. D'Amico, Esquire 619 North Grandview Avenue Daytona Beach, Florida 32118 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
