The Issue Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(b), Florida Statutes, in that Respondent knowingly failed to report actual or suspected child abuse as alleged in Petitioner's Amended Administrative Complaint. Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(j), in that Respondent violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules as alleged in Petitioner's Amended Administrative Complaint.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of material and relevant facts: Parties' Statement of Agreed Facts Respondent holds Florida Educator's Certificate 632878, covering the area of elementary education, which is valid through June 30, 2017. At all times pertinent hereto, Respondent was employed as a part-time interventionist teacher at Brownsville Middle School ("BMS"), Miami-Dade County School District. Respondent has been a certified teacher for 25 years. On March 9, 2015, Respondent was informed by Y.H., a sixth-grade female student, that her stepfather comes into her room and lays on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present. On March 9, 2015, Y.H. also informed Respondent that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. Respondent went to Counselor Sonya Durden's office on March 9, 2015, to discuss what she had heard from Y.H. and the other two students. Respondent did not immediately report the student's accusation on March 9, 2015, to the Department of Children and Families or the Child Abuse Hotline. Facts Adduced at the Hearing The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates under section 231.2615, Florida Statutes. During Castella's 25 years of teaching, she testified that she had never received training concerning suspected child abuse or related reporting requirements. This testimony is rejected. The more persuasive and credible evidence revealed that all school employees at BMS, with no exceptions, received regular training at the beginning of each school year, which includes their reporting duties when child abuse is suspected. The more persuasive evidence also demonstrated that various posters on child abuse reporting were posted around the school to remind teachers at BMS of their reporting requirements in cases of suspected child abuse. Respondent's Exhibits B and C are examples of those posters. Respondent's Exhibit B is a colorful poster with the title Child Abuse Look for the Signs. The poster gives information on various signs of physical and sexual abuse, as well as the procedure to follow when a child speaks of abuse. The evidence revealed that this poster was posted at the designated faculty sign-in area at BMS at all times relevant to this incident. Principal Ebony Dunn testified that "all of the employees have to sign-in whether they're hourly, whether they're full-time, non-instructional." Thus, Castella would have been required to sign in at this designated area at the beginning of each day where the poster was prominently displayed. The undersigned finds that based on the more persuasive evidence, Respondent was aware of the poster's content. Respondent's Exhibit C is another poster with the title Reporting Child Abuse is Everyone's Responsibility. This poster details various signs of child abuse and how someone can report an instance of child abuse. The undisputed evidence indicated that this poster was also displayed at the student services building/main learning center at all times relevant to the incident. The more persuasive evidence and reasonable inferences drawn from the evidence indicate that Respondent was aware of both of these posters and knew of her duty to report suspected child abuse. March 9, 2015, Incident On March 9, 2015, Castella was approached by three girls at lunch, one of whom was Y.H., a sixth-grade female student. Castella observed that the other two girls were prodding Y.H. to speak to Castella. During this encounter, Castella was informed by Y.H. that her stepfather comes into her room and lies on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present.2/ Y.H. also informed Castella at lunch that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. After lunch, Castella went to another teacher, Philogene, to report the incident because "she wasn't sure what to do," and she wanted to know the other teacher's thoughts on Y.H.'s statement.3/ Castella contends that she was not aware that what Y.H. told her amounted to child abuse. However, when asked why she told Philogene about the incident, Castella responded, "I wanted to ask Ms. Philogene what she thought because what Y.H. told me was odd, weird." The record indicates that after hearing about the incident, Philogene told Castella to report the incident to Counselor Durden.4/ Castella testified that on March 9, 2015, she went to Counselor Durden's office to discuss what she had heard from Y.H. and the other two female students. However, Castella asserted that despite her efforts, she was not able to report the incident to Counselor Durden because she was not in her office. Significantly, Castella left the school that day without reporting the incident to any administrator on campus.5/ Inexplicably, Castella did not immediately report the female student's information on March 9, 2015, to the Department of Children and Families or to the Child Abuse Hotline. Respondent claims that she did not know the protocol for reporting child abuse. The undersigned rejects this claim as incredible and spurious. Rather, the credible and more persuasive evidence shows that it was common knowledge among the school staff, based on training and posted notices, that an incident of child abuse should be reported immediately. March 10, 2015, Incident The next day, Castella went to Counselor Durden's office immediately upon arriving at the school to report what Y.H. had told her the day before. According to school policy, Castella was mandated to report the incident to a school administrator. Counselor Durden was not an administrator, nor was she Castella's supervisor. After disclosing the nature of her visit, Counselor Durden questioned Castella about the incident and why Castella did not report the incident when she became aware of it the day before. Counselor Durden testified that, "[Ms. Castella] said a young lady, a sixth-grader, had told her during lunch that the stepfather comes into the room every night drunk and holds her down and climbs on her. So I said, 'She told you when?' And she said, 'Yesterday during lunch.' And I said, 'You didn't call it in?' And she said, 'No I didn't.' And I think she was talking about like, you know she's friendly with the kids, and she didn't want to lose her confidence, they trusted her." Castella testified that she was reluctant to immediately report the incident because she did not want to violate the female students' trust. Counselor Durden proceeded to call the Department of Children and Families while Castella was still in her office. Both joined in reporting to the Department of Children and Families what had occurred. Later that afternoon, the Department of Children and Families held a meeting at the school with Y.H., the other two girls who were with Y.H., and Castella to gather details of the suspected child abuse and to determine how to proceed with the incident. Contact With News or Media Outlets Castella contacted and voluntarily appeared on a number of local news broadcasts. She detailed the suspected child abuse incident and proceeded to give the name of the school. Petitioner's Exhibit 8, which is a Notice of Investigation signed by Castella and delivered to her, states that a faculty member may be terminated if they speak to a number of subjects about a pending investigation. The document specifies, "You are not to discuss this matter with any witnesses, parents, staff, students, or the complaining party to avoid interference with the investigation." Castella asserts that she did not violate the notice because it did not specify she could not speak to news stations. However, Principal Dunn testified that anyone, including the listed parties, had the ability to watch the news broadcast. Therefore, the undersigned finds that her appearance on the news stations violated the spirit and intent of the notice because it could have had an indirect, adverse impact on witnesses and interfered with the internal investigation by the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Diana Castella in violation of Counts 1, 2, and 3 of the Amended Administrative Complaint and placing her license on a one-year probationary status, during which time she be ordered to attend and successfully complete, at her expense, training related to her reporting obligations under section 1012.795(1)(b), Florida Statutes. DONE AND ENTERED this 17th day of March, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 17th day of March, 2017.
The Issue The issues in this case are whether Respondent, Department of Children and Families (Department or Respondent), was substantially justified in initiating a disciplinary action against Petitioner, My First Steps of Bradenton, Inc. (My First Steps or Petitioner), and/or whether special circumstances exist that would make it unjust to award attorney's fees and costs to Petitioner pursuant to section 57.111, Florida Statutes (2019).1
Findings Of Fact The Department is the state agency responsible for licensing and regulating child care facilities, to ensure the health and safety of children in care. 3 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day time period for issuing the Final Order. See Fla. Admin. Code R. 28-106.216. The Department initiated the underlying action by issuing an Administrative Complaint against My First Steps, a licensed child care facility. My First Steps is owned and operated by Carina Piovera. It is organized as a corporation, with its principal office in Florida. When the underlying action was initiated, My First Steps had no more than 25 full-time employees and a net worth of not more than $2,000,000.00. As the parties stipulated, My First Steps is a small business party as defined in section 57.111(3)(d). My First Steps was the prevailing party in the underlying action. The Department was not a nominal party in that action. My First Steps timely filed its application for an award of attorney's fees and costs under section 57.111, less than 60 days after the Final Order was rendered. Petitioner filed an affidavit attesting to the attorney's fees and costs incurred in the underlying action, provided billing records, and submitted an attorney's affidavit attesting to the reasonableness of the hourly rate charged by counsel of record for Petitioner. Respondent filed a counter-affidavit that disputed certain charges and one cost item. At the hearing, Petitioner withdrew the items to which Respondent objected. Petitioner's revised claim, quantified in its Proposed Final Order, is for $7,015.00 in attorney's fees and $507.88 in costs. The revised claim is reasonable, appropriately supported, and not disputed by Respondent. The only disputed issues to be determined are related to the Department's defenses: whether the issuance of the Administrative Complaint was substantially justified; and/or whether special circumstances exist which would make the award of fees and costs to My First Steps unjust. Findings Related to Substantial Justification Defense The Administrative Complaint set forth the following alleged facts that were the basis for the charged violation: On May 30, 2018, K. Alejandra-Pacheco,[4] a child care personnel, worked on an art project with one of the children in her care, while the other children were climbing on up and down the chairs and taking off their shoes. Ms. Alejandra-Pacheco stated that she is not allowed to discipline the children, only the facility director, Carina Piovera. Ms. Piovera came into the classroom and made the children sit down. A.M., a one-year old toddler, was one of the children in the classroom. In it, Ms. Piovera is seen roughly handling A.M. by grabbing him, aggressively wiping his nose, having intense body language when talking to the child, forcefully pushing the child's chair into position at the table, and then aggressively put his hands on the table. A.M. is visibly afraid and upset, crying throughout the interaction with Ms. Piovera, who appears to be intimidating the child. This incident was recorded by the facility camera. The inappropriate discipline described above was frightening to the child and is a Class I violation of child care licensing standards. The charge against My First Steps was as follows: The foregoing facts violate Section 2.8, Child Care Facility Handbook, incorporated by reference in Rule 65C-22.001(6), F.A.C. (2017), which states in part: 2.8 Child Discipline A. The child care facility shall adopt a discipline policy consistent with Section 402.305(12), F.S., including standards that prohibit children from being subjected to discipline which is severe, 4 The staff person identified in the Administrative Complaint as K. Alejandra-Pacheco testified in the underlying action that her full name is Karina Alejandra Briseño Pacheco. She is referred to by different combinations of these four names throughout the record in this case, including Karina Briseño, Karina Pacheco, Alejandra Briseño, and Alejandra Briseño; and the name Briseño is sometimes spelled Briceño. All of these references are to the same person. She is referred to herein as Ms. Pacheco. humiliating, frightening, or associated with food, rest, or toileting. Spanking or any other form of physical punishment is prohibited. * * * The following discipline techniques shall be prohibited in the child care facility: The use of corporal punishment/including, but not limited to: Hitting, spanking, shaking, slapping, twisting, pulling, squeezing, or biting; Demanding excessive physical exercise, excessive rest, or strenuous or bizarre postures; Compelling a child to eat or have in his/her mouth soap, food, spices, or foreign substances; Exposing a child to extreme temperature; Rough or harsh handling of children, including but not limited to: lifting or jerking by one or both arms; pushing; forcing or restricting movement; lifting or moving by grasping clothing; covering a child's head. The penalty sought by the Administrative Complaint for the alleged Class I violation was a fine of $500.00. The factual allegations were primarily based on a video of the incident. The allegations reflect the collective perceptions of a group of Department personnel who met to assess the video when considering whether to issue an Administrative Complaint. The group included Maritza Gonzalez, who was and is the child care licensing supervisor for a region that includes Manatee County, where My First Steps in located; and Mary Beth Wehnes, the Department's expert in this case, who was the Department's regional program safety manager at the time. The Department's perception of the video was as follows: in the beginning, five of the six children circling a table in a classroom were left to their own devices while the teacher, Ms. Pacheco, was engaged in a one-on- one art project with one child at one end of the table. The five children were unruly, understandably so, considering these one- and two-year-olds were not given any appropriate activity, and did not want to sit still and do nothing. Some of the children, including A.M., were standing on their chairs and taking their shoes off; another child was chewing on a shoe. When A.M. hoisted himself up on the table (about 50 seconds into the video), the teacher spoke to him (though there is no audio, so what she said could not be determined). A.M. quickly scooted off the table and into his chair. Ms. Piovera then strode into the room and all of the children appeared to freeze. Ms. Piovera went straight to A.M., got down in front of A.M.'s chair, grabbed him and the chair, and moved in very close to hover over him. Her body language was intimidating, especially to a little one only 18 months old. When Ms. Piovera shifted a little to the side, A.M.'s face was revealed (at the 1:12 mark). He was crying and appeared frightened. Ms. Piovera then reached for a couple of tissues, and roughly wiped/pinched his nose several times, the second time so roughly that his feet flew up and his head went back. Shortly after that, Ms. Piovera forcefully turned and pushed A.M.'s chair, with him in it, up to the table. She then grabbed A.M.'s arms from under the table and forcefully lifted them up, then put them down on the table. A.M. put his head down on the table, continuing to cry. The child next to him also put her head on the table; all of the children seemed scared in reaction to Ms. Piovera. She then left the room. In viewing the video, the Department had the impression that Ms. Piovera came in to discipline the children, considering how the teacher was handling the classroom and how the children were acting before Ms. Piovera entered the room. The Department considered Ms. Piovera's actions in the room to be inappropriate discipline. The Department was concerned with the aggressive, intimidating body language of Ms. Piovera when she aggressively strode into the room, squatted down in front of A.M., grabbed him and his chair, and moved in to hover over him. The Department was concerned with Ms. Piovera's rough physical handling of A.M., when she repeatedly wiped his nose, pinching it as she wiped, so forcefully that she made his feet fly up and head go back. The Department was concerned by Ms. Piovera pushing the child in his chair up to the table, then grabbing his arms from under the table to forcefully lift them up and bring them back down on the table. The Department perceived this rough physical handling of A.M. to be the disciplinary consequence for his misbehavior. The Department considered it to be a serious matter that violated the licensing standards for child discipline, classified by rule as a Class I violation. The Department's decision to issue the Administrative Complaint also took into consideration a joint investigation of My First Steps, following a complaint to the central abuse hotline (Hotline). The complaint was made by A.M.'s mother, based on her observations from a camera feed in A.M.'s classroom at My First Steps. She saved the video to her phone. Ms. Gonzalez received the initial report regarding the incident by email from the child's mother on June 12, 2018, with additional follow-up information provided by the mother through June 15, 2018. Based on the nature of the allegations, Ms. Gonzalez instructed the mother to report the incident to the Hotline, operated by a different Department division. The Hotline received the mother's report of the incident, accepted the complaint for investigation, and referred it for a joint investigation: a child protective investigation to be conducted pursuant to standards in chapter 39, Florida Statutes, and corresponding rules; and a child care licensing complaint investigation to be conducted pursuant to licensure standards in section 402.305 and implementing rules. The child protective investigation was referred to the Manatee County Sheriff's Office (MCSO), the designated child protective investigator. The child care licensing complaint investigation was referred to Ms. Gonzalez, who assigned a child care licensing counselor. The joint investigation began on June 20, 2018. An on-site investigation was conducted at My First Steps that afternoon by the MCSO child protective investigators and the child care licensing counselor. The investigation centered on the video provided by A.M.'s mother. The owner/ director, Carina Piovera, was shown the video and interviewed, as was Ms. Pacheco, the teacher assigned to the classroom for one- and two-year-olds where the incident occurred. Ms. Gonzalez participated by telephone to translate the interview with Ms. Pacheco, who only spoke Spanish. Separate reports were prepared by the MCSO for the child protective investigation and by the child care licensing counselor assigned for the licensure complaint investigation. Both reports summarized the mother's complaint allegations, which were, in pertinent part5: The director (Carina) mistreated A.M. on [May 30, 2018]. There were 6 children in the classroom with the teacher. The teacher had one of the children with her doing an art project and the other 5 children were sitting at a table doing nothing. Then, the 5 children began taking off their shoes and standing in the chairs. The teacher never made the children sit down while she was with another student doing art. … Carina stormed in the room and hovered over the children. A.M. burst into tears and she grabbed him. Carina reached and grabbed a napkin to wipe A.M.'s nose twice very hard. Carina used enough force to cause A.M.'s head to go back and his feet lift off the floor. Carina took A.M.'s chair and shoved it under the table, pulled his arms up from under the table roughly and put his arms down. A.M. put his head down 5 The mother's Hotline complaint raised other issues addressed in the joint investigation, regarding her child being put in timeout, other children being put in timeout for long periods of time, and another child left to sleep in a chair. A longer video related to these other matters was not offered in evidence. These other complaint issues are omitted from the reports' summary of the mother's complaint because they are not germane to this case. The Department did not include charges in its Administrative Complaint for these other matters. and continued to cry. It is stated you could tell Carina was angry and was very forceful with A.M. The MCSO investigators' findings in the "Overall Safety Assessment" and "Summary/Findings Implications" sections of their report set forth their perception of the video. Included were findings that Ms. Piovera "forcefully" wiped A.M.'s nose and "caused the child's head to go back and his feet to come off the floor"; Ms. Piovera also "forcefully" put the child's arms on the table. The MCSO investigators included in the Overall Safety Assessment Ms. Piovera's statement to investigators that the video on the mother's phone was not accurate, so "it looks more rough than it actually was in real life." But, the report noted, Ms. Piovera stated (on June 20, 2018) that she did not have the original video "since [the incident] was almost one month ago." After June 20, 2018, the MCSO investigators checked with parents of other children at My First Steps and found no expressions of concern about their children's treatment. On July 16, 2018, they closed the child protective investigation under abuse and neglect standards in chapter 39 with a determination of "not substantiated." That is an intermediate determination, between "verified" and "no indicators." As described by Ms. Gonzalez from her experience in other investigations, "not substantiated" is used when the event actually happened, but it did not cause the level of harm required under chapter 39. Her description comports with the rule definition of the term.6 6 Florida Administrative Code Rule 65C-30.001(16) (December 2017) provides: "'Child Maltreatment Index' is a document that defines specific types of abuse, neglect, or abandonment; and guides decision making by staff at the [Hotline] and Child Protective Investigations regarding screening decisions and investigative findings. The 'Child Maltreatment Index,' CF Operating Procedure No. 175-04, October 2015, is incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref-06454." The linked rule-document, at page 5, provides the following definitions: "'Verified' is used when a preponderance of the credible evidence results in a determination the specific harm or threat of harm was the result of abuse, abandonment, or neglect. 'Not substantiated' is used when there is credible evidence which does not meet the standard of being a preponderance to support that the specific harm was the result of abuse, abandonment, or neglect. 'No indicators' is used when there is no credible evidence to support that the specific harm was the result of abuse, abandonment or neglect." (Emphasis added). The Department was aware that the child protective investigation was closed with the intermediate "not substantiated" determination. The Department considered both the outcome of the child protective investigation and the findings made by the MCSO investigators in their report, which were consistent with the Department's perception of the video. The Department also considered the investigation report of its licensing counselor, who assessed the complaint in the context of the child care facility licensing standards. The counselor's report found non-compliance with the child discipline standards in section 2.8 of the Child Care Facility Licensure Handbook (Handbook), as well as two other standards. The Recommended Order set forth how the ALJ perceived the incident upon consideration of the testimony at the hearing in the underlying action and his perception of the video (as discounted by the ALJ's finding in paragraph 8 that the video was "a little fast," a matter relevant to the special circumstances defense discussed below): Around 10:21 a.m., … Ms. Piovera entered the toddler room to assist Ms. Pacheco in redirecting the children to a new activity, i.e., to sing and do art work, after efforts by Ms. Pacheco to have the children sit down and keep their shoes on were unsuccessful. Redirection is considered a form of discipline by the Department, but Ms. Piovera considers moving to a new task a routine action in caring for toddlers. Just before Ms. Piovera entered the room, A.M. and two other children were standing in their chairs and climbing onto the table. When A.M. saw Ms. Piovera enter the room, he immediately sat down in the chair. Ms. Piovera placed him in an upright position, adjusted his pants, and observed that his nose needed to be wiped and he had taken one shoe off. His nose had crusted mucous and the discharge was green. The child was crying at this point. The mother acknowledged that A.M. does not like having his nose wiped. Ms. Piovera needed two swipes with a tissue to clear A.M.'s nose. His feet lifted slightly when his nose was wiped, but this was because A.M. was trying to avoid having his nose cleaned. Ms. Piovera also put his shoe back on. Although A.M. began crying when she first touched him, no unusual force or pressure was used, and there were no marks or bruises on the child. Within a few seconds after his nose was cleaned, A.M. became calm, stopped crying, and placed his head on the table. The class continued with painting activities. (RO at 6-7). The video evidence is subject to differing interpretations by reasonable persons. While Petitioner in its Proposed Final Order invited the undersigned to adopt the findings in the Recommended Order describing the incident shown on the video as the findings herein, that invitation must be declined, as the undersigned would describe the incident as portrayed in the video in substantially different terms from the Recommended Order. For example, while the undersigned would agree that Ms. Piovera came into the classroom to help Ms. Pacheco, who could not keep the children sitting down with their shoes on (and out of their mouths), there is no sign in the video that Ms. Piovera attempted to redirect children from actively standing on chairs and chewing on shoes to actively engaging in appropriate activities such as art and singing. Instead, the video shows that both before and after Ms. Piovera was in the room, only one child was provided an art activity. None of the other five children who were being unruly were redirected to an art activity, singing, or any other activity. And the "class" did not continue with painting activities after Ms. Piovera left the room; only one child continued a painting activity, the same child engaged in the one-on-one painting project with the teacher before Ms. Piovera's entrance. For the remaining one and one-half minutes of the video after Ms. Piovera left the classroom, no new activity was started for the five other children, including A.M. All five children were subdued in the aftermath of Ms. Piovera. A.M., in particular, continued to cry for a while after Ms. Piovera left the room, kept his head down on the table, and appeared morose, in contrast to the happy, active child he appeared to be before his encounter with Ms. Piovera. The undersigned also would not describe Ms. Piovera's handling of A.M. the same as in the Recommended Order. Instead, the undersigned would agree with the Department's perceptions when viewing the video before issuing the Administrative Complaint. A reasonable interpretation of the video evidence is that rather than making physical contact with A.M. to constructively redirect him to an appropriate activity, Ms. Piovera imposed a physical consequence on A.M. for misbehaving by roughly and forcefully wiping/pinching his nose, twisting and pushing A.M. in his chair up to the table, and forcefully pulling his arms up from under the table and pushing them down to the table. Ms. Piovera forced A.M. into the position of sitting at the table and forced his arms on the table not to prepare him to start a new activity, but as punishment. Ms. Piovera did not offer A.M. or the other five children any new activity; she left the room after she was done positioning A.M. so Ms. Pacheco could continue her one-on-one painting session with the same one child (and Ms. Pacheco did so for the last one and one-half minutes of the video). This interpretation is supported by the summary of the on-site investigation in the licensing inspection report. In summarizing Ms. Pacheco's interview, the report noted Ms. Pacheco said that the five children were behaving improperly while she was attempting to conduct a painting activity with one child. She was asked why she did not attempt to get the children in her classroom under control and she explained that only Ms. Piovera could "correct the children when they are off task."7 7 Ms. Gonzalez, who translated the interview, recalled Ms. Pacheco stating that only Ms. Piovera could discipline the children. Ms. Gonzalez remembered that because she made a point of asking Ms. Pacheco what she meant by "discipline." Ms. Pacheco responded that, "well, redirection is what is in the policy." It was reasonable for the Department to consider Reasonable persons can differ—and have differed—regarding their perceptions of the video. The allegations of fact in the Administrative Complaint are substantially supported by a reasonable perception of the video evidence, albeit that the ALJ in the underlying action saw it differently. The Administrative Complaint allegations are further supported by the investigations and findings of the child protective investigators and the child care licensing counselor in their respective reports. This material was all available to and considered by the Department before issuing the Administrative Complaint. The testimony at the final hearing in this case elicited by Petitioner's counsel makes the point that the allegations are supported by a reasonable perception of the video. In questioning the Department's expert, Petitioner's counsel asked whether it was a reasonable interpretation of the video for the ALJ to find that when the child's feet lifted up and head went back with Ms. Piovera's second nose wipe, that was the child pulling back because he does not like his nose wiped. The witness responded, "I don't agree with that." Counsel then asked, "But it's one that's possible, isn't it?" The witness agreed, "Sure." (Tr. at 91). The issue here is not whether the ALJ's findings reflect one possible interpretation of the video. The issue is whether another reasonable interpretation of the video—that of the Department's witnesses at the time, supported by the investigations—provided a reasonable basis for the allegations in the Administrative Complaint. The undersigned finds that there was a reasonable basis in fact for the allegations in the Administrative Complaint. Petitioner argued that the Department should have given weight to Ms. Piovera's statement that the reason for the mother's complaint was that information from the investigation provided by Ms. Gonzalez, who was part of the group that assessed the video when deciding whether to issue the Administrative Complaint. Her information supported the group's perception from the video itself. Ms. Gonzalez also made contemporary notes during the interview, but the notes are fairly sketchy, as would stand to reason given her focus on actively translating for Ms. Pacheco. the mother owed her money. Petitioner also argued the Department should have considered the fact that even though the mother saw the incident on the camera feed, she nonetheless let the child remain at the facility for several more hours, until coming to pick up him at 2:15 p.m. Lastly, Petitioner pointed to the mother's delay in lodging the complaint. None of these issues affect what is shown on the video or what was found in the investigative reports. If the mother's testimony had been the sole or primary evidence of the incident, then the points raised by Petitioner would bear on her credibility. However, the basis for the complaint was what the mother observed on the camera feed. It is noteworthy that the Department was able to, and did, independently assess the video evidence and, as previously noted, did not include charges in the Administrative Complaint for some aspects of the mother's complaint. As for the charge stemming from the incident shown on the video in evidence, however, Petitioner's points do not undermine the reasonable basis in fact for the allegations. Findings Related to Special Circumstances Defense Ms. Piovera was not forthright regarding the availability of the actual video footage recorded on her security system. She repeatedly suggested that the original video footage would present a different, slower scene in which she would not appear to be aggressive and rough with A.M., to plant the seed of doubt regarding the accuracy of the video provided by the mother, while not ever producing the original video footage so her theory could be tested. In Ms. Piovera's interview with the MCSO investigators, she told them that the video obtained from the complaining mother was not accurate, making her appear to be rougher than she actually was in dealing with A.M. But, she said, the original video was no longer available, because it had been nearly one month since the May 30, 2020, incident. When Ms. Piovera said that—on June 20, 2018—21 days had passed since the incident. The pre-hearing documents in the underlying action officially recognized in this case at the Department's request show that Ms. Piovera made the same claim of inaccuracy when deposed in the underlying action, but suggested that she could obtain the original video from the security system company. That triggered an elaborate effort by the Department to obtain the original video in discovery, strung along by Petitioner's promises through her attorney that the video would be forthcoming, followed by changing excuses as to why the video was not yet forthcoming but would be soon, and changing stories as to when and how it would be provided. The Department's motion to compel in early February 2019 laid out the efforts to that point to obtain the video. See First Amended Motion to Compel at 2, ¶ 9, filed Feb. 8, 2019. The motion to compel was granted, but still no video was produced; instead, there were more promises and changing stories as to when and how the video would be provided. Ultimately, the Department moved for sanctions, which was granted by Order issued March 18, 2019 (Sanction Order). The Sanction Order recited that the Department had a copy of the surveillance footage from a third party (the mother), but that My First Steps "contends the copy does not accurately depict the incident in question because the video replay is faster than the real time. As a sanction, the Department requests that [My First Steps] be prevented from objecting to the accuracy of the Department's copy." The ALJ agreed, and imposed the following sanction: "[My First Steps] will not be allowed to object to the accuracy or admissibility of the Department's copy of the facility surveillance video for May 30, 2018." My First Steps moved for rehearing of the Sanction Order. The Department's response chronicled the progression of assurances provided by Ms. Piovera, through counsel, none of which were met, and ultimately, as before, the story changed. The ALJ denied the motion for rehearing. Again, at the hearing in the underlying action, counsel for My First Steps tried to revisit the Sanction Order, offering case law suggesting harsh sanctions should not be imposed against a party for the counsel's actions. The ALJ stated that he did not think counsel was stonewalling, but he believed that Ms. Piovera was stonewalling. The ALJ denied this second request for reconsideration of the Sanction Order. (underlying action Tr. at 29-30). Petitioner essentially concedes that the discovery fiasco is a special circumstance, but argues it should only render part of the claimed fees unjust. Petitioner contends that its agreement to withdraw those items should end the issue of special circumstances. Petitioner's view of the limited scope and impact of these special circumstances is not supported by the record. The issue of the original video's availability was more than just a discovery matter. Instead, Ms. Piovera invoked her claim that the mother's copy of the video was inaccurate, making her appear rougher with the child than she was, when she was investigated on June 20, 2018. The investigators found her statement significant enough to include it in their Overall Safety Assessment, after they described the video showing that Ms. Piovera was rough and forceful with the child. The investigators also made a point of recounting Ms. Piovera's representation that the original video was no longer available by that point, three weeks after the incident. A fair inference from that recitation is that the investigators asked Ms. Piovera for the original video after she said the copy they were reviewing was not accurate. The issue of the original video's availability also had an impact on the outcome of the underlying action. Despite the Sanction Order, at the final hearing Ms. Piovera was permitted to testify over objection—for the stated purpose of allowing My First Steps to make a record—that the video in evidence was not accurate, appearing faster than real life. She painted the picture that the "inaccurate" video made her look like she rushed into the room and was aggressive and rough. Again, notwithstanding the Sanction Order and the stated purpose for allowing this testimony, the ALJ ended up accepting Ms. Piovera's testimony, finding that the video in evidence was "a little fast." (RO at 5, ¶ 8). Implicitly, the ALJ accepted the implications: that Ms. Piovera appeared rough when she really was not; Ms. Piovera appeared to rush in when she really did not move that fast; and Ms. Piovera's actions appeared aggressive and harsh when they really were not. A critical point that must be made here is that Ms. Piovera's own testimony at the hearing in the underlying action established that, contrary to what she told the investigators on June 20, 2018, she could have obtained the original video, and she knew she could have obtained the original video, within 30 days of the recording. Ms. Piovera's clear testimony on this point was as follows: "[W]hen I purchased the equipment, they told me they only keep it for 30 days because the memory is not that big. So after 30 days, everything is going to erase." (underlying action Tr. at 33) (emphasis added). Ms. Piovera thus admitted she knew on June 20, 2018, that she had nine more days to obtain the original video before it would be erased. Yet she told the investigators it was already too late to obtain the original video.8 Ms. Piovera added at the hearing in the underlying action, for good measure, a new excuse for not trying to obtain the original video, stating that "for the privacy and one of the main reasons why I didn't turn this video [sic] is because the parents were not okay with me showing their children in the video. That was one of the main reasons why. I had a letter for them to sign and they refused." (underlying action Tr. at 32). That would not explain why she told investigators the original video was no longer available, nor why she would hesitate to provide an original video to support her claim that the mother's copy of the video, which showed the children, was inaccurate. These special circumstances are far more than just a discovery matter. Ms. Piovera misrepresented to the MCSO child protective investigators that the original video was no longer available, and used her misrepresentation as 8 After admitting that she has known since she purchased the equipment, and, therefore, knew on June 20, 2018, that she could still obtain the original video, Ms. Piovera claimed at the hearing in the underlying action that she actually wanted to pull up the original video footage on her equipment right then and there, during the investigation, to show the MCSO investigators, but they told her not to, because the video copy showed no evidence of abuse. That claim is not credible; it does not square with her contrary statement that the investigators made a point of including in their report in the Overall Safety Assessment. a way to undermine the video provided by the mother without actually proving her claim that the mother's video was inaccurate, distorting her actions and making her look rougher than she said she actually was. Ms. Piovera employed the same strategy in the underlying action. That this was a strategic plan is evident from her attorney's billing records, which include the following entry four weeks before the hearing: "Notify Carina of need to demonstrate that phone video of incident is not accurate." See Pet. Ex. 5, billing entry for February 21, 2019. The strategy to undermine the perceived reliability of the video in evidence is both a concession by Petitioner that the video provides a reasonable basis for the allegations and charge of rough and harsh handling of A.M. in the Administrative Complaint, and a reason for finding special circumstances making the award of attorney's fees and costs unjust. In short, Ms. Piovera's inconsistent and false statements regarding the original video allowed her to play both sides of the issue, injecting doubt as to the reliability of the mother's video without having to actually prove it.9 Ms. Piovera could have obtained the original video had she really believed it would have helped her respond to the investigation. Instead, she lied and told the investigators she could no longer obtain it. That she succeeded in injecting the same doubt in the administrative hearing, despite the Sanction Order, requires a finding that these special circumstances went to the heart of the issue, and may well have tainted the outcome of the underlying action. Under these unique circumstances, an award of attorney's fees and costs would be unjust. 9 The undersigned does not suggest that counsel for Petitioner sponsored or was aware of his client's misrepresentations. Ms. Piovera's testimony at the final hearing in the underlying action that she knew since she purchased the surveillance equipment that she could obtain the original video within 30 days of the recording appeared to be the first time this statement was made. Conceivably, the statement could have been overlooked even after it slipped out.
The Issue Whether Petitioner's application for licensure as a family foster home should be granted.
Findings Of Fact Around September 4, 2001, Petitioner applied for licensure as a family foster home. Petitioner successfully completed all the requirements for licensure mandated by the Department. In fact, the Department’s family services counselor supervisor recommended Petitioner for licensure. However, prior to finalization of her recommendation, she was asked to review the application again based on information in the central abuse hotline. From 1997 until June 2000, Petitioner operated a registered day care. During the time the day care was operated, Petitioner cared for approximately 25 children ranging in ages from infant and up. Prior to May 14, 2000, A.N. was enrolled at Petitioner’s day care. His mother visited the facility at least twice and was introduced to Petitioner's pet boxer, a medium size dog who lived in the house with Petitioner. The mother registered no objections to the presence of the dog and knew the dog would be around the children at the daycare. In fact, the dog was very friendly and was very gentle with the children at the daycare. Additionally, the children at the daycare liked to play with the dog. The dog was not mean or vicious and had never been so. On May 11, 2000, A.N. was dropped off at the day care by his mother. He stayed for approximately four hours. He was picked up by his mother. During his stay at the day care, he was fed as instructed and was supervised appropriately by Petitioner. He did have a difficult time being separated from his mother. At no time was he left alone with Petitioner’s dog. On May 12, 2000, A.N. was again dropped off by his mother. He stayed approximately seven hours. He was fed appropriately and adequately supervised during his stay. He was crying due to separation from his mother. Petitioner saw A.N.’s grandmother pull into the driveway and met her when she entered the daycare. Petitioner’s dog licked A.N. in the face. The dog’s tongue did not go into the child’s mouth. The dog never snapped at the child and was never left alone with the child. Petitioner gave the grandmother A.N.’s bottles and his teddy bear. There was no dog feces on any of A.N.’s things when he left with his grandmother. A.N. did not return to the daycare. On May 14, 2000, the Department received a report on the central abuse hotline, Abuse Report No. 2000-076224. The report alleged that Petitioner was inadequately supervising A.N. because a large dog was alone with A.N., snapping at him and licking the inside of his mouth, A.N.’s teddy bear had dog feces on it, A.N.’s bottles were not refrigerated, A.N. was not fed his food, and had physical injuries. On May 15, 2000, the Department’s child protective investigator along with a Sheriff’s deputy visited Petitioner’s home unannounced. She found the home to be neat and clean. The dog was friendly and did not show any signs of viciousness. In fact, the visit did not yield any information which would support the allegations of the abuse report. Later, the Department’s investigator interviewed A.N.’s mother and grandmother. The bear had been washed. Based on interviews with the mother and grandmother, the Department closed the report finding some indications of neglect in the areas of inadequate supervision, inadequate food, and exposing a child to dangerous conditions (the dog). However, neither the grandmother nor the mother testified at the hearing and no independent evidence was offered at the hearing to support the allegations of the abuse report. Therefore, for purposes of this licensure hearing there is no credible, non-hearsay evidence to support the allegations made in the abuse report and the report offers no basis to deny Petitioner’s application for licensure as a family foster home. Moreover, the presence of a dog in a home does not preclude licensure as a family foster home. The Department’s own licensing standards checklist reflects that a dog in a foster home must be currently vaccinated and access to potentially dangerous animals must be restricted. Petitioner met these criteria.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner’s application for licensure as a family foster home. DONE AND ENTERED this 30th day of August, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 30th day of August, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Gregory Paules, Esquire 12421 North Florida Avenue Tampa Law Center, Suite B-122 Tampa, Florida 33612 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issues are whether Respondent made false reports to the Florida Abuse Hotline in violation of section 39.206, Florida Statutes1/; and, if so, what is the appropriate penalty.
Findings Of Fact The Department is the State agency responsible for managing the Florida abuse hotline and investigating allegations of abuse, abandonment, and neglect of children. Respondent is the biological mother of E.W., a minor child. Respondent called the Florida abuse hotline on August 14, 2014, and reported that the father of E.W., Derwin Worley, was physically abusing E.W. and exposing her to drunken behaviors. In response to the call, the Department generated Intake Report number 2014-213532-01 (First Case), which contains the following allegation narrative: The father spanks [E.W.] and leaves bruises. The father closes and locks the door when he spanks [E.W.]. The father may be using his hand or whatever he can pick up when he spanks [E.W.]. Two days ago, four bruises were observed on [E.W.’s] butt that were caused by the father. The bruises were red. [E.W.] also has bruises on her legs that were explained to have been caused by tubing down the river. It is not believed that the injuries match the explanation. The bruises are small and greenish. [E.W.] also has a bruise under her eye that goes from one side to the other. It was explained that the bruise was from a mosquito bite. The explanation does not match the injuries. The father drank Saturday or Sunday night and law enforcement had to be called to the home. When [E.W.] pees in her diaper, the father lets her sit around in the diaper. It is unknown how long she had been in the diaper. The father curses around [E.W.]. [E.W.] curses because the father curses around her. The mother was allowing the father to babysit more and more, because she doesn’t trust babysitters. The father will not give [E.W.] back to the mother. He has kept [E.W.] from her for one night. The mother has full custody. The mother was trying to move in with he[r] grandmother. The father does not work. He gets disability income. The mother does not believe in spanking a child of [E.W.’s] age. Investigation of the First Case was assigned to Department Child Protective Investigator Sheila Ferguson. During her investigation, Investigator Ferguson found that there had been ongoing custody disputes over E.W. between Respondent and Mr. Worley, and that there were apparently times that Respondent needed assistance in getting E.W. back from Mr. Worley. According to Investigator Ferguson, custody was Respondent’s primary motivation for making the allegations against Mr. Worley. Investigator Ferguson testified that, during her investigation in August of 2014, although Respondent claimed that she had photos of E.W.’s bruises, including injuries to E.W.’s eye and buttocks, Respondent delayed for over two months in providing any photographs, and when she did, Respondent only provided photos of E.W.’s legs. According to Investigator Ferguson, the photos only showed bruises on E.W.’s legs and shins, which are common childhood injuries and not indicative of abuse. At the time of the August 2014 allegations, Respondent and E.W. were living in the home of Mr. Worley and Loretta Worley, his wife, who was E.W.’s stepmother. Investigator Ferguson said that when she questioned Respondent about the delay in showing the photos, Respondent explained that she delayed because she was afraid that the Worleys would put her out of their home. Investigator Ferguson felt that Respondent’s explanation of delay did not make any sense. Inspector Ferguson reported that she examined the child for marks and bruises and fully investigated the home and care given to E.W. by the Worleys and found no reason to question the child’s safety. According to Inspector Ferguson, she observed a very loving and appropriate relationship between Mr. Worley and E.W. Because of purported lack of evidence to support Respondent’s allegations, and a belief that Respondent did not produce clear facts or timelines and was motivated by a custody dispute, Inspector Ferguson felt that the First Case was a false report. Inspector Ferguson’s supervisor, Holly Cummings, agreed. However, because the First Case was the first report called in by Respondent, Inspector Ferguson only warned Respondent against making false reports and closed the case as “No Indicators.” According to the Department’s internal operating procedures manual, “no indicators” means there was no evidence to support the allegations.2/ On August 27, 2015, Respondent was involved in another call made to the hotline regarding Mr. Worley and E.W. The second report was assigned Intake Report number 2015-229587-01 (Second Case). The reporter who made the call in the Second Case identified herself as Respondent’s friend and asked that the case not to be assigned to Inspector Ferguson. Respondent was in the background during the call at the location where the call originated. The allegation narrative in the intake report from the Second Case states: The father is an alcoholic. The father drinks alcohol to the point of intoxication every day. When the father drinks, he becomes aggressive and belligerent. Law enforcement has been called out to the home several times. When the father drinks he slurs his words and can barely talk on the phone. There are pictures of finger prints on the legs of [E.W.]. The pictures also depict a hand print to the inside thigh of [E.W.]. The pictures were taken about a month ago. It is unknown how the injuries were sustained. There are pictures of [E.W.] being held by her uncle. The uncle is a registered sex offender. There are no indications that the uncle has ever been left alone with [E.W.] or has been sexually abused by him. The mother and father do not get along. The mother temporarily signed over custody to the father but now the father refuses to allow the mother to have custody of [E.W.]. The mother is taking the father to court on 09-30-2015. The Second Case was also investigated by Inspector Ferguson, who once again found that the evidence did not support the allegations. In addition, the Second Case was assigned to the Child Protection Team, a subcontractor of the Gulf Coast Children’s Advocacy Center affiliated with the Florida Department of Health’s Children’s Medical Centers. The Child Protection Team is a separate entity from the Department and its employees are independent from Department personnel. Inspector Ferguson again suspected false reporting because custody was still at issue and Inspector Ferguson did not believe that Respondent produced evidence to support the allegations. However, as in the First Case, instead of concluding that the report was false, the Second Case was also closed with a conclusion of “No Indicators.” On January 19, 2017, Respondent made another call to the Florida abuse hotline and reported that Mr. Worley had sexually abused E.W. The intake report from that call was assigned Intake Report Number 2017-018546-01 (Third Case). The allegation narrative in the Intake Report from the Third Case states: The father has been touching [E.W.’s] vagina and buttocks when she gets up in the morning and while she is asleep. When [E.W.] takes a bath she cries. [E.W.] has been playing with herself. It was reported that [E.W.] learned this behavior from her father. [E.W.] does not feel safe in the father’s home. Three weeks ago, [E.W.] fell and hit a bed or dresser after jumping up and down on a mattress. She sustained a bruise on her head. The bruise looks like a handprint. She was taken to an emergency room. She had bruises on her body in the past. The father has back and heart problems. An additional, related call came into the hotline on February 12, 2017, and was assigned Intake Report number 2017- 044728-01 (Fourth Case). The allegation narrative from the Fourth Case’s Intake Report states: The father has been sexually abusing [E.W.]. The father touches her private area while she sleeps. [E.W.] has been scratches [sic] her private area a lot lately, it is believed this is from the father sexually abusing her. [E.W.]’s private area are [sic] red. The mother is aware the father sexually abusing [E.W.] and is allowing her to go back to the father’s house today, 02/12/2017. The Fourth Case was based on the same allegations as the Third Case, but was reported by a Jackson County Sheriff’s Office deputy after the Sheriff’s office had received notice of Respondent’s allegations of sexual abuse against Mr. Worley. Law enforcement officials are mandatory reporters.3/ The Fourth Case was eventually closed because the Third Case, based on the same allegations, was already opened. Investigation of the Third Case was assigned to Department Child Protective Investigator Daniel Henry. Given the nature of the allegations, Investigator Henry responded “immediately,” which, according to the Department’s protocol, requires investigation within four hours. Investigator Henry arrived at Mr. Worley’s home to investigate the allegations within four hours of the call, and, based upon his meeting with Mr. Worley and E.W., Investigator Henry concluded that E.W. was not in danger. According to Investigator Henry, interactions between E.W. and her father were very “comfortable and free” and the child did not seem afraid of her father in the least. Allegations of sexual abuse, especially when made against a parent, are considered severe in nature and taken very seriously by the Department. Because of this, the Department once again referred E.W. to the Child Protection Team for a “forensic interview.” Angela Griffin with the Child Protection Team conducted the forensic interview of E.W. According to Ms. Griffin, a forensic interview is “a legally-sound interview, non-leading.” From the interview, Ms. Griffin concluded that E.W. had not been abused by Mr. Worley. Ms. Griffin testified that she found E.W. to be very forthcoming and truthful with no hesitation in her statements. She recalled asking E.W. about anyone touching her inappropriately and no disclosures were made. Ms. Griffin reported that she saw no evidence of sexual abuse of E.W. According to Ms. Griffin, after observing E.W. with Mr. Worley, she had no concerns. She reported that E.W. and Mr. Worley appeared to be bonded with a loving and appropriate father-daughter relationship. Ms. Griffin’s interview with E.W. was recorded and offered into evidence at the hearing. Although the recording was delivered to the undersigned at the hearing, ruling on the evidentiary value of that recording was reserved. After the hearing, the undersigned reviewed the recorded interview. Based upon that review, and considering the context and manner in which the recording was offered into evidence, it is found that the recording is non-corroborative hearsay4/ that does not support a finding that Respondent made false accusations or a false report against Mr. Worley.5/ E.W.’s kindergarten teacher, Amy Glass, who has had daily contact with E.W. in her kindergarten class, is of the opinion that E.W. is a well-cared for child and is not concerned that E.W. has been abused. She described E.W.’s father and stepmother as loving and appropriate caregivers. Ms. Glass believes that E.W. is the type of child that would tell her if she was being abused. According to Ms. Glass, E.W. has never told her that she has been abused by her father or stepmother. While Ms. Glass further testified about statements made by E.W. concerning Respondent, those statements, and any other statements attributed to E.W., are hearsay and were not considered. E.W.’s stepmother, Loretta Worley, also testified. Ms. Worley’s testimony confirmed that there have been ongoing disputes between Respondent and Mr. Worley regarding custody of E.W. Ms. Worley testified that she and Mr. Worley provide a loving home for E.W., where E.W. is well cared for. She said that neither she nor Mr. Worley spank E.W. Ms. Worley also testified that Respondent’s accusations against Mr. Worley were false and motivated by Respondent’s desire to gain custody of E.W. Ms. Worley further testified that Respondent has been ordered to pay child support to Mr. Worley for E.W., and that Respondent is over $4,000 behind in those payments. Respondent confirmed that she is behind on child support payments. On the other hand, Ms. Worley’s testimony provided support for Respondent’s allegations regarding Mr. Worley’s drinking. Ms. Worley confirmed that law enforcement has been called to their home on a number of occasions, both before and after 2014. Ms. Worley testified that law enforcement had been called a couple of times while Respondent was living with them for six to eight months in 2014, when Mr. Worley would get angry with Respondent while he and Respondent were bickering back and forth. Ms. Worley also testified that law enforcement had been called “three or four times, maybe” since 2014, because of Mr. Worley’s drunkenness. According to Ms. Worley: Yeah. I mean, I’m not for sure how many - - but I know it ain’t been like she’s claiming; that they’re out there every single day. Her daddy does not drink every single day. Ms. Worley’s testimony regarding Mr. Worley’s drunkenness is credited and inconsistent to departmental investigative findings of “no indicators” in the first two cases. Ms. Worley also offered testimony about things that E.W. allegedly told her that Respondent had said. That evidence, however, was not considered because it is hearsay, is not corroborative of other non-hearsay evidence, and is not otherwise reliable. Notably, while it is found that the video recording of Ms. Griffin’s interview of E.W. offered by the Department is non-corroborative hearsay as to the Department’s case, the video provides statements from E.W. that are contrary to Ms. Worley’s assertion that Mr. Worley does not spank E.W. When asked whether she gets along with everybody in the house, E.W. stated during the recorded interview, “Daddy get me in trouble.” When asked what happens when she gets in trouble, E.W. replied, “He pop my butt.” When asked what her daddy pops her butt with, E.W. responded, “With his hand.” When asked does something happen to her butt when he pops her with his hand, E.W. stated, “When I be bad, he pops me.” When further asked whether something happens to her butt when he pops her, E.W. shook her head from side to side, and Ms. Griffin stated, “No?” in confirmation of E.W.’s head gesture. When asked if something else happens when he pops her, E.W. changed the subject. Aside from being hearsay that should not be considered because it does not corroborate any competent evidence, even if the video of E.W.’s “forensic interview” is taken into account, it does not support a finding that Respondent’s reports were false, and does not disprove Respondent’s allegation that Mr. Worley was sexually abusing E.W. Contrary to the Department’s findings of “no indicators,” the evidence adduced at the hearing provided support for Respondent’s allegations regarding Mr. Worley’s drinking behavior, as well as for alleged bruises and E.W’s contact with a sex offender while in Mr. Worley’s custody. In addition, although the Department made an issue of the timing of Respondent’s presentation of photographic evidence in support of her allegations, Respondent provided photographs of bruises to E.W.’s legs and a photograph of Mr. Worley’s brother, a convicted sex offender, holding E.W. These photos were presented by Respondent to the Department prior to the hearing, as well as at the hearing. In fact, during the time period of one of Inspector Ferguson’s investigations, Respondent went to the Department’s local office and attempted to present the photographs, but Department personnel involved in the investigation were too busy to see her. Respondent also presented a compact disk that purportedly has a recording of E.W. making statements about sexual abuse by her father. That recording, however, is unintelligible and is otherwise non-corroborative hearsay. The facts that Respondent and Mr. Worley were having ongoing custody disputes and that Respondent was behind on child support payments raise suspicions about Respondent’s motive in calling in the reports. Those suspicions, however, are not more persuasive than the evidence supporting the first two calls to the hotline. The Department’s failure to acknowledge that evidence in its investigations, instead finding “no indicators,” undermines the Department’s preliminary determinations and the reliability of its case against Respondent. And, while the evidence does not prove that E.W. was subjected to sexual abuse, the Department’s submissions were insufficient to support a finding that E.W. was not sexually abused. In sum, the Department did not prove that Respondent called in false reports to the hotline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of February, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 February, 2018.
Findings Of Fact Chapter 402, Florida Statutes, provides for licensing of child care facilities by the Department of Health and Rehabilitative Services (hereinafter "HRS"). It mandates minimum standards for personnel, physical facilities, sanitation and safety, nutritional practices, admissions and record keeping, transportation safety, child discipline, and plans of activities. Section 402.306, Florida Statutes, allows counties whose licensing standards meet or exceed state minimum standards to perform child care facility licensing in that county rather than HRS performing that activity. Chapter 402, Florida Statutes, was originally enacted in 1974 to provide minimum standards for the growing number of commercial day care facilities. In the definitional section of that Chapter, the legislature specifically defined a child care facility and further specified those programs and facilities exempted from the child care facility licensing laws. Section 402.302(4), Florida Statutes, provided as follows: "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit. The following are not included: public schools and non- public schools which are in compliance with the Compulsory School Attendance Law, chapter 232; summer camps having children in full-time residence; summer day camps; and Bible Schools normally conducted during vacation periods. [Emphasis supplied.] Due to extensive publicity involving certain abuse incidents by personnel at child care facilities and public opinion, the child care facility licensing laws were revisited in 1984. In a special session, the Legislature strengthened some requirements of Chapter 402 and provided for screening and background checks of personnel in child care facilities and for reasonable parental access to children in those facilities. Chapter 84-551, Laws of Florida. Due to the insistence of HRS and certain counties performing their own child care facility licensing that pre- kindergarten programs in schools required those schools to obtain licensure as child care facilities, Chapter 402 was further amended in 1985 to clarify the exclusion of schools. As amended, the statutory definition of child care facility now provides: "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit. The following are not included: public schools and non- public schools and their integral programs; summer camps having children in full-time residence; summer day camps; and Bible Schools normally conducted during during vacation periods. [Emphasis supplied.] Section 402.302(4), Florida Statutes 1985. The Senate Staff Analysis and Economic Impact Statement regarding the amendment of Chapter 402 provides that this change is a "Technical amendment which clarifies that public and non-public school programs are not subject to licensure as child care facilities." Respondent's Exhibit numbered 6. Following the 1985 amendments to Chapter 402, HRS and the Palm Beach County Health Department (which was responsible for child care facility licensing in Palm Beach County) jointly requested a legal opinion from the Attorney General regarding the scope of the statutory exclusions from child care licensing laws for public and nonpublic schools and their integral programs. The specific question posed was as follows: Do the exemptions under s. 402.302(4), F.S., as amended, and s. 9, Ch. 77-620, Laws of Florida, apply to public and nonpublic schools which offer: Prekindergarten classes during regular school hours in the same physical plant or in an adjoining structure? Infant care during regular school hours in the same physical plant or in an adjoining structure? School age child care services before and after school hours in the same physical plant or in an adjoining structure? In a lengthy analysis of the statutory exclusion of schools from child care facility licensing requirements, the Attorney General concluded: In sum, then, and unless and until legislatively or judicially determined otherwise, it is my opinion that the exemptions under s. 402.302(4), F.S., as amended by Chs. 84-551 and 85-54, Laws of Florida, and s. 9, Ch. 77-620, Laws of Florida, apply to public and nonpublic schools which offer prekindergarten classes or infant care during regular schools hours or school age child care services before and after school hours. . . . AGO 55-74, p. 7. Attorney General Opinion 85-74 also provides at page 3 as follows: Thus, public schools and nonpublic schools and their integral programs are not "child care facilit[ies]" for purposes of ss. 402.301-402.319, F.S., as amended. The term "integral programs" is not defined within ss. 402.301-402.319, F.S., as amended, or Oh. 85-54, Laws of Florida; however, the word "integral" has generally been defined as "[c]onstituting a completed whole; . . . lacking nothing of completeness." See, 46 C.J.S. Integral p. 1100; Ballentine's Law Dictionary 645 (3rd ed. 1969). And see, Random House Dictionary of the English Language Integral p. 738 (unabridged ed. 1967) (pertaining to or belonging as a part of the whole; constituent or component; necessary to the completeness of the whole); Webster's Third International Dictionary Integral p. 1173 (1966) (composed of constituent parts; making up a whole). Of., Matezak v. Secretary of Health, Education and Welfare, 299 F.Supp. 409, 413 (D.C.N.Y. 1969)("integral" means part of constituent component necessary or essential to complete the whole). Whether a particular child care center or arrangement constitutes an integral program for purposes of s. 402.302(4), FS., as amended, would appear to present a factual question which can only be reached on a case-by-case basis. [Emphasis supplied.] During the special session in 1984 and the regular session in 1985, the Legislature increased funding for HRS' child care facility licensing activities and also created 48 additional staff positions for those licensure activities. Several HRS employees determined that (1) the Attorney General's Opinion was confusing, (2) it was too difficult to determine on a case-by-case basis whether a program was an integral part of a school or a child care facility, and (3) the exclusion of schools from child care facility licensing requirements was inconsistent with legislative intent of protecting children. Accordingly, HRS drafted an amendment to Rule 10M-12.001, Florida Administrative Code, to define the term "integral program". The "rule package" prepared by HRS in compliance with Section 120.54, Florida Statutes, commences with the following language: Reason rule is being filed or amended: Chapter 402.302(4), Florida Statutes, provides the definition of a child care facility. Public and non public schools and their integral programs are precluded from this definition as a child care facility and therefore are not subject to licensure. . . . The term "integral programs", which is not defined by statute, is ambiguous and has been the subject of various interpretations by public and non public schools. For purposes of licensure, this rule amendment is necessary in order to clarify which specific child care programs in the public and non public schools are required to be licensed. Without the rule amendment, some schools will continue to interpret their "integral programs" as meaning their infant and preschool programs, or before and after school programs, thereby avoiding licensure and resulting in no regulation by the department . . . Rule 10M-12.001, Florida Administrative Code, as proposed, would provide as follows: (1) Child Care Standards and Licensure. Child Care Standards included in this chapter were adopted by the department to protect the health, safety and well being of the children of the State who receive child care in child care facilities as defined in Section 402.302, Florida Statutes, and to promote their emotional and intellectual development and care. Public and nonpublic schools and their integral programs are not child care facilities as defined in Section 402.302(4) Florida Statutes, and are not subject to licensure. The term "integral programs" includes school activities which are directly related to the educational component of the school for 5 year old kindergarten programs through grade 12, and extra curricular activities, such as sport teams, school yearbook, school band, meetings, and service clubs. The term also includes child care programs administered directly by the school to care and supervise children from 5 year old kindergarten through grade 12 before and after the school day. The term "integral program" does not include child care programs for children below 5 year old kindergarten, such as infants and preschoolers, and child care programs which are contracted by the school to provide care and supervision for children from 5 year old kindergarten through grade 12 before and after the school day. The proposed rule as published and noticed by HRS, although defended by HRS vigorously in this proceeding, is not in fact the rule that HRS intends to adopt. HRS now admits that it has no authority to regulate any program in a public school since only the Florida Department of Education can regulate public schools. HRS intends, therefore, to delete the reference to public schools in its proposed rule and to only regulate nonpublic schools although it admits that such regulation of only nonpublic schools would therefore be discriminatory. HRS further intends to amend its proposed rule so as to clarify that those nonpublic schools which are religious in affiliation will continue to enjoy the additional exemption from child care facility licensure given to them by Section 402.316(1), Florida Statutes, which provides: The provisions of ss. 402.301-402.319, except for the requirements regarding screening of child care personnel, shall not apply to a child care facility which is an integral part of church or parochial schools conducting regularly scheduled classes, courses of study, or education programs accredited by, or by a member of, an organization which publishes and requires compliance with its standards for health, safety, and sanitation. However, such facilities shall meet minimum requirements of the applicable local governing body as to health, sanitation, and safety and shall meet the screening requirements pursuant to ss. 402.305 and 402.3055. Failure by a facility to comply with such screening requirements shall result in the loss of the facility's exemption from licensure. Petitioner Florida Association of Academic Nonpublic Schools (hereinafter "FAANS") is comprised of approximately 25 associations of schools. Additionally, archdioceses, which are separate corporate entities, and which own and operate schools, are direct members as are county organizations and the Florida Catholic Conference. The organization itself represents nonpublic schools in the state of Florida before state agencies, including the Legislature which it actively lobbies. It has a direct relationship as a state representative, one of only five in the country, with the United States Department of Education. It is involved in accreditation and has a code of ethics with which all schools (both direct members and indirect members) must comply. FAANS presently represents 943 schools with approximately 230,000 students, out of the approximate 1,750 nonpublic schools in the state of Florida. A majority of the schools represented by FAANS operate educational programs for children under 5 years of age. For the most part, these school programs are not licensed as child care facilities although some of the schools have licensed their programs under duress rather than have their programs closed by the child care facility licensing agencies. All of the nonpublic schools represented by FAANS comply with the Florida Department of Education requirement that they annually submit statistical information including the number of students and faculty in their prekindergarten programs for the Department of Education's Nonpublic School Data Base. Petitioner Jacksonville Country Day School presented no evidence in this proceeding. Petitioner The Cushman School is a nonpublic school in Miami, Florida, and is an indirect member of FAANS. It has been in operation for 62 years and has operated educational programs for children under 5 since it was founded. It begins enrolling students at the age of 3 years (and on rare occasion 2 years) and offers education through grade 6. It is not presently licensed as a child care facility. Under the proposed rule as published in the June 6, 1986, Florida Administrative Weekly, The Cushman School would be required to obtain a child care facility license, the economic impact of which would be significant. First, it would lose its exemption from property taxes as an educational institution at a speculated cost of approximately $10,000. Structural modifications would need to be made to the school for bathing and sleeping facilities. Additional requirements, such as fencing and child-staff ratios, would come into play imposing more costs on the school. The Cushman School possesses historic site status which means even minor repairs, let alone structural modifications, have extensive restrictions imposed as to how they can be done and the materials that can be used. The end result is that if the proposed rule goes into effect, The Cushman School will have to discontinue its educational programs for children under 5 years of age. The economic impact of compliance with child care facility licensing requirements by schools is not unique to The Cushman School. Section 120.54, Florida Statutes, requires each agency proposing or amending a rule to provide a detailed economic impact statement. The purpose of an economic impact statement is to promote informed decision-making by ensuring an accurate analysis of economic factors, and those factors an agency must consider are clearly specified. An agency must also consider the impact of a proposed rule on small businesses as defined in the Florida Small and Minority Business Assistance Act of 1985. There are nonpublic schools throughout Florida which fit the statutory definition of small business. It is clear from the economic impact statement for proposed rule 10M-12.001 that HRS did not consider the impact of the rule on small business nonpublic schools. Also to be considered is the cost to an agency of implementing the rule. According to HRS' impact statement, actual implementation statewide will only cost $31. There is no consideration of additional staff time and paperwork to process applications, issue additional licenses, or conduct additional inspections. There is no comment in the economic impact statement of the impact on competition and the open market for employment, or any indication that such an analysis is inapplicable; rather, the agency's estimate of effect on competition speaks to potential cost savings from deregulation of before and after school care programs. Similarly, the required analysis of the costs or economic benefits to all persons directly affected by the proposed rule speaks in terms of deregulation and substantial savings and is, accordingly, deceptive. An agency is also required to provide a detailed statement of the data and method used in making each of the estimates required in the economic impact statement. The only detailed statement in HRS' economic impact statement refers to the costs of printing and mailing, publication of the proposed rule in the Florida Administrative Weekly, and conducting a public hearing on the proposed rule. There is no hint of the data and method used, if any, in reaching other conclusions contained within the economic impact statement. The economic impact statement accompanying proposed rule 10M-12.001 is inadequate. Section 120.54(1), Florida Statutes, further requires that an agency proposing a rule give notice of its intended action and the specific legal authority under which its adoption is authorized. As set forth above, the rule proposed by HRS does not reflect its intended action since the rule purports to apply to both public and nonpublic schools and HRS intends to further amend the rule so as to exclude its application to public schools and its application to religious nonpublic schools. As to the specific legal authority under which the proposed rule is authorized, HRS cites, at the end of the proposed rule, as its rulemaking authority Section 402.301, Florida Statutes. That section is entitled "Child care facilities; legislative intent and declaration of purpose and policy". Nowhere in that legislative intent section is HRS authorized to promulgate rules. The proposed rule thus fails to fulfill that requirement.
The Issue The issue in this proceeding is whether the Department of Children and Family Services should renew the foster care license of Gloria J. Smith.
Findings Of Fact Petitioner, Gloria J. Smith, is an elementary school teacher. She previously was employed by the Ocala Police Department as a reserve officer. Petitioner has been a foster parent for approximately three years. According to Diana McKenzie, the Department's Acting Supervisor for relicensing, retention, and facilities, there were no allegations made against Petitioner prior to this incident. J.F. was a foster child of Petitioner's on two separate occasions. The first time, J.F. was placed with Petitioner, and was returned to her mother. The date of J.F.'s first placement with Petitioner is unclear from the record. J.F. returned to Petitioner for approximately two years and was returned to her mother again in May of 2001. In October of 2000, Petitioner took J.F. to the Ocala Police Department regarding an allegation of possible abuse that occurred in the past. The record is unclear as to the time sequence when this occurred in relation to when J.F. was placed with Petitioner. In any event, Petitioner's taking J.F. to the Ocala Police Department was related to alleged events that did not occur during the time J.F. was in Petitioner's foster care. In September 2001, Petitioner received a call from the Department informing her that an abuse allegation had been made and that the Department would be out to pick up her foster children. At the time, Petitioner had three foster children including J.F. Petitioner also has three children of her own including her son, J.S., who was approximately 14 years old in September 2001. Despite repeated efforts, she was not able to get information regarding the abuse allegation. No one from the Department came to her home to investigate the abuse allegation. Ocala Police came to her home but Petitioner was not at home at the time the police arrived. Petitioner took her son, J.S., to the Ocala Police Department for reasons she understood to be associated with the abuse allegation. However, she was not present during any interview of J.S. by the Ocala police. No other competent facts were established to support the allegations contained in the November 16, 2001, letter from the Department to Petitioner denying relicensure.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order granting Petitioner's license renewal. DONE AND ENTERED this 24th day of July, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 24th day of July, 2002.
