Findings Of Fact Petitioner is the state agency responsible for regulating child day care facilities in Florida. Respondent, Caring Heart Preschool and Day Care, Inc. ("Caring Heart"), is licensed as a child day care facility for children, ages 1-12, pursuant to certificate number 1190-21. Respondent, Pamela McFarlane, is the owner of Caring Heart within the meaning of Section 402.302(7), Florida Statutes. 2/ Ms. McFarlane operates Caring Heart at 1408 West Michigan Street, Orlando, Florida, 32805. Michigan Street is a busy four lane street. On December 15, 1994, a four year old child left Caring Heart without the knowledge of his teacher or Ms. McFarlane. The child wandered outside the facility, left the premises, and crossed Michigan Street. The child was found by a bus driver. The bus driver returned the child to Caring Heart. Respondents failed to provide quality child care within the meaning of Sections 402.3015(1) and 402.302(3). Respondents failed to maintain direct supervision of the child within the meaning of Section 402.305(1)(d) and Florida Administrative Code Rule 10M-12.002(5)(a)2. 3/ The potential harm to the child was severe within the meaning of Section 402.310(1)(b)1. The period in which Respondents failed to maintain direct supervision of the child was substantial. The child had time to leave the premises, cross a busy four lane street, and converse with an adult who, fortunately for the child, took the time to secure the child's safety. Respondents' failure to maintain direct supervision of the child did not result in any actual harm to the child. Respondents have no history of any prior discipline.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of the charges in the Administrative Complaint and imposing an administrative fine of $500. RECOMMENDED this 6th day of October, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1995.
The Issue Petitioner filed a motion for attorney's fees and costs, pursuant to Section 57.111, F.S. after Respondent voluntarily amended its report of abuse or neglect regarding Petitioner. The parties have stipulated that these three issues remain for disposition: Whether Petitioner is a "small business party", as defined in Subsection 57.111(3)(d), F.S.; Whether the underlying proceeding had a "reasonable basis in law and fact" at the time it was initiated by the agency Respondent; and Whether the fees and costs claimed by Petitioner are "reasonable and necessary". The parties wish to defer resolution of this final issue pending outcome of the prior two issues.
Findings Of Fact Sandra Pinkert is president of SPAW, Inc. and one of only two stockholder/owners. Her co-owner and vice president is Annette Williams. The corporation owns Discovery Academy, a child day care facility in Orange County, Florida licensed by the Department of Health and Rehabilitative Services for children aged two to twelve years. This is the only facility owned by the corporation. The corporation has its principal office in Florida, has ten employees, seven of which are full time and has a net worth of less than $2 million. On January 27, 1992 the Department of Health and Rehabilitative Services (HRS) received a report of alleged abuse at Discovery Academy. The allegation was that one of the owners, Sandra Pinkert, had slapped and squeezed a child's hands until they were red and that she had held blankets over children's heads at nap times. Richard Miller, a child protection investigator for HRS conducted the investigation. After conducting a series of interviews with the owners, some parents, children and teachers at the center, Mr. Miller and his supervisors classified the report, designated FPSS #92-008704, as "proposed confirmed abuse", with Sandra Pinkert identified as perpetrator. During the course of his investigation Mr. Miller received information from the teachers that Ms. Pinkert had been observed holding blankets covering the heads of two children at naptime until they were still or stopped crying, telling them she would stay there until they were asleep. Mr. Miller also learned that on several occasions Ms. Pinkert had instructed parents to wash children's mouths with soap as punishment for biting. On one occasion a mother was called to the facility; Ms. Pinkert filled a soap dispenser with dish washing liquid and gave it to the mother to administer as punishment for biting; the mother squirted soap in the child's mouth (a 2 1/2 year old) and he vomited. Discovery Academy had a "4-C" contract with HRS to provide subsidized day care for children of mothers in school, at-risk children and other eligible clients. During the pendency of the abuse report proceeding (approximately eleven months) the facility lost its contract. On May 28, 1992, after notice to Sandra Pinkert, HRS denied her request for expungement of FPSS #92-00704. After she requested a formal administrative hearing as provided in Section 415.504, F.S., the case was referred to the Division of Administrative Hearings, was assigned case number 92-3788C, and was set for hearing on November 6, 1992. Counsel for Ms. Pinkert conducted prehearing preparation and deposed several witnesses. On November 2, 1992 HRS agreed to amend the report to delete Ms. Pinkert as a perpetrator and the agency moved for dismissal of her request for a hearing. The hearing was cancelled and Hearing Officer Parrish entered the order described in the Preliminary Statement above. In her motion for fees and costs, Petitioner claims fees of $10,000.00 (40 hours at $250.00 per hour) and costs of $727.02.
The Issue The issue is whether Petitioner may terminate Respondent's teaching contract for gross insubordination, in violation of Section 1012.33(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009(4), or incompetency in the form of a lack of emotional stability, in violation of Section 1012.33(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009(1)(b)(1).
Findings Of Fact Respondent has been employed by Petitioner as a teacher for 14 years. During the 2003-04 school year, Respondent taught first grade at Southside Elementary School, where she has taught for many years. On Wednesday, October 1, 2003, Respondent entered the school cafeteria to pick up her students. As she entered the cafeteria, she met Susan Ross, the school guidance counselor. Ms. Ross informed Respondent that she had seen one of Respondent's male students put his hand on the chair seat of another boy, who was about to sit down, evidently in an attempt to grab the buttocks or genital region of the boy as he sat down. Respondent replied that one of her students had reported that, a few weeks previously, the same male student, while in the boys' restroom, either had pulled another boy's pants down or had tugged at the waistband of another boy's pants. Respondent had never been able to ascertain exactly what, if anything, had happened in the restroom that day because she had not been present and the child told her different versions of the events. At the time of the conversation with Ms. Ross, Respondent viewed the male student's misbehavior as horseplay, not sexual abuse. Obviously, Ms. Ross did not interpret the cafeteria incident that she had witnessed as sexual abuse, or else she would have reported it to the principal and the authorities. At the conclusion of her brief conversation with Ms. Ross, Respondent told Ms. Ross that Respondent would discuss the student's misbehavior with his mother, with whom Respondent had a good relationship, and the mother would help bring the misbehavior to end. Ms. Ross said nothing in response. Later on the same day of the cafeteria incident, Ms. Ross summoned Respondent to Ms. Ross's office. Ms. Ross told Respondent that she could not talk to the student's mother because she "might be in on it," meaning that the mother might be part of some sexual abuse that the child was acting out. Ms. Ross informed Respondent that she needed to report the student's actions because he was perpetrating sexual abuse on another child. At about this point in the conversation, Diana Middleton, who was then in her second year as principal of Southside Elementary School, entered Ms. Ross's office and joined the conversation. Ms. Ross repeated her belief that Respondent was obligated to call the authorities--specifically, the Department of Children and Family Services' child abuse hotline. Ms. Middleton agreed with Ms. Ross and told Respondent that a teacher had a duty to call the Department of Children and Family Services when a child showed the behavior that the male student had shown. Stating that it was not Respondent's job to determine the truth of a child's statement, Ms. Middleton twice directed Respondent to call the child abuse hotline, and she directed her to make a student disciplinary referral and intervention team referral. By these directives, Ms. Middleton implied that the student was or might be a perpetrator of sexual abuse, rather than a victim of sexual abuse. Logically, if Ms. Middleton had believed the child to be a victim of child abuse, she would not have directed Respondent to complete a disciplinary referral, which is punitive in nature. However, Respondent continued to believe that the child's behavior was nothing more than horseplay, and she continued to believe that the mother's intervention was the logical and appropriate first step in dealing with this misbehavior. Respondent also believed that Ms. Middleton and Ms. Ross were overreacting and basing their opinions upon incomplete or inaccurate information. Respondent considered her options and elected to compromise by taking the recommendation of the principal to complete the intervention team referral form. She completed the intervention team referral form by checking eight boxes, including "impulsive," "inappropriate sexual behavior," "hyperactive," and "daydreams." Respondent stated as the reason for the referral: "inappropriate sexual advances: grabbing 'private' areas, pulled down another student's pants in the bathroom." The intervention team referral emphasizes maladaptive behavior, characteristics, and attitudes, such as "loneliness," "fearful," and "immature," rather than outright misbehavior, which is more directly addressed by a disciplinary referral. In completing an intervention team referral form, a teacher or administrator describing the behaviors justifying the intervention does not need to engage in the kind of factfinding that typically precedes the imposition of discipline because the purpose of the intervention team referral is to find additional resources to help a child, not to punish a child or to deter future misbehavior. Over the next couple of days, Ms. Middleton became frustrated with Respondent's passive resistance, rather than outright defiance. By Friday, October 3, 2003, someone else at the school called the child abuse hotline and reported the student as a perpetrator of sexual abuse, based on the alleged restroom incident and possibly the cafeteria incident, as well. By the start of school on Monday, October 6, 2003, the student's mother visited the school after having learned of the abuse report. The mother demanded that Ms. Middleton transfer her child to another classroom immediately, and Ms. Middleton did so. Later in the afternoon of the same day, a child protective investigator from the Department of Children and Family Services visited the school and interviewed Ms. Middleton and Respondent. Respondent gave a statement that corresponds to the facts set forth above. At this point, Ms. Middleton's dissatisfaction with Respondent's performance intensified. Already unhappy with Respondent's failure to call the child abuse hotline, Ms. Middleton now believed that Respondent falsely understated the facts to the investigator, as compared to the facts stated by Respondent in the intervention team referral form described above. It is difficult to justify Ms. Middleton's conclusion that, essentially, Respondent had lied to the investigator. As noted above, the different levels of exactitude appropriate to the intervention form and the statement to a child abuse investigator could account for what little discrepancy--and it is only one of emphasis--between the narrative in the intervention form and Respondent's testimony, which presumably tracks her statement to the investigator. For some reason, as these events were unfolding, Ms. Middleton discredited Respondent's ability to evaluate the source of the alleged restroom incident, although Ms. Middleton admitted at the hearing that Respondent had the responsibility of sorting out the alleged restroom incident to determine whether the male student was guilty of any misbehavior that required reporting to the authorities. Obviously, Ms. Middleton could not reasonably have expected Respondent to report the cafeteria incident, which was witnessed by Ms. Middleton's guidance counselor, not Respondent. Unfortunately, the situation deteriorated. A local television station eventually picked up the story and tried unsuccessfully to interview Respondent. An unidentified person then called Petitioner's Superintendent and reported that Respondent was contemplating suicide. The Superintendent responded by alerting the police, who dispatched uniformed officers to Respondent's home. The police offered Respondent the alternative of arrest or involuntary hospitalization, and she chose the latter. After a short time at a local hospital, where Respondent refused medication, Respondent was transferred that evening to Baptist Hospital in Jacksonville. The next morning, a psychiatrist examined Respondent and, finding no psychiatric basis for an involuntary commitment, changed Respondent's status to voluntary and released her. Evidently in deference to the stress of the prior evening, the psychiatrist wrote Respondent a letter excusing her from work for a week. He later wrote a letter saying that she was able to return to work. The record discloses nothing about any problems or emotional instability that Respondent ever exhibited in the classroom or at school. However, by letter dated January 15, 2004, Respondent's Superintendent demanded, among other things, "[i]nformation relating to your medical condition and/or status at admission and upon your release." Although the Superintendent's letter claimed to be concerned with Respondent's emotional condition and her ability to return to work, most of the items demanded by the Superintendent in this letter pertained to Respondent's involvement in the above- described incidents of early October 2003. Specifically, he demanded information about allegations that Respondent had shared confidential information with the male student's parent, her response to the local television station's coverage of the incident and her letter to the local newspaper that she had been coerced by the school administration to complete the intervention team referral form, her accounting of discrepancies between the information on the intervention team referral form and her statement to the child protective investigator, and a description of her reaction to being told by Ms. Middleton that her work was unsatisfactory. The letter suspends Respondent, with pay, retroactive to January 5, 2004. In his opening statement, Petitioner's counsel predicated the charge of insubordination on Respondent's refusal to file an abuse report and refusal to provide the Superintendent with the medical information that he had demanded. As for Respondent's refusal to supply her medical records to the Superintendent, Petitioner relies on its Rule 3.04(II) for authorizing the Superintendent to demand these documents. However, this rule authorizes Respondent's School Board to require medical or psychiatric examinations when claimed necessary by the Superintendent, and the rule does not give even the School Board the authority to demand records from other examinations. While testifying, the Superintendent admitted as much and disclaimed any reliance, as to the charge of gross insubordination, upon Respondent's refusal to supply him the medical records from her evening at Baptist Hospital. As for Respondent's refusal to file a child abuse report, Ms. Middleton's directive to do so was unreasonable. Ms. Middleton herself acknowledges that a teacher must sort out the facts before filing a child abuse report. Respondent did so in this case and determined that the incident did not constitute a reportable matter. Her determination was factually reasonable, especially given the requirements of the statute governing reports of child abuse, as discussed below.
Recommendation RECOMMENDED that the Nassau County School Board enter a final order dismissing the proceeding against Respondent to terminate her employment contract. DONE AND ENTERED this 24th day of March, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 March, 2005. COPIES FURNISHED: Dr. John L. Ruis, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32034-3499 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Brian T. Hayes Brian T. Hayes, P.A. 247 North Jefferson Street Post Office Box 1275 Monticello, Florida 32344 John Joseph Cascone 101 Centre Street Post Office Box 1852 Fernandina Beach, Florida 32035
