The Issue The issue is whether Respondent committed a Class I violation and should have a $500.00 administrative fine imposed, for the reasons given in the Administrative Complaint dated August 23, 2018.1/
Findings Of Fact The Department is the state agency responsible for licensing and regulating child care facilities. Respondent holds license number C12MA0082 issued pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Chapter 65C-22. It authorizes Respondent to operate a child care facility at 3815 26th Street West, Bradenton, Florida. The owner of the facility is Carina Piovera. First licensed in 1997, the facility provides child care for children ranging from the age of one to five. It employs five teachers and has a capacity of 35 children. Besides routine inspections by the Department every three months, for the last ten years, the facility has been inspected periodically by the Early Learning Coalition, which provides the facility with funding vouchers for families that cannot pay for full child care. Prior to this incident, Respondent never has been charged with a Class I violation. This class of violation is the most serious in nature and is one that could or does result in serious harm or death to a child. Fla. Admin. Code R. 65C-22.010(1)(e)1. Based on a complaint by a parent that Ms. Piovera used excessive discipline on her 18-month-old son, A.M., the Department conducted a two-hour complaint inspection on June 20, 2018. The inspection resulted in the issuance of an Administrative Complaint alleging that Ms. Piovera used "inappropriate discipline" on the child, in violation of section 2.8A. and F., Child Care Facility Handbook (Handbook), incorporated by reference in rule 65C-22.001(6). The first section requires generally that a child care facility adopt a "discipline policy" that is consistent with section 402.305(12), while the second provision enumerates discipline techniques that are prohibited. The "inappropriate discipline" is described in the Administrative Complaint as follows: On May 30, 2018, K. Alejandra-Pacheco, a child care personnel, worked on an art project with one of the children in her care, while the other children were climbing 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 his interaction with Ms. Piovera, who appears to be intimidating to the child. This incident was recorded by the facility camera. The Department employee who conducted the inspection did not testify at the hearing. However, a Department witness who viewed a video of the incident alleges that Ms. Piovera "used excessive force during hygiene and behavior redirection," and this was "severe, humiliating, or frightening to the child." The alleged incident occurred in the facility's toddler room. Six children, ranging in age from one to two years old, were in the room, along with a teacher, Ms. Pacheco. A surveillance camera, reloaded every 24 hours, is installed in each classroom to monitor all activities. The video is erased every 30 days by the security company, Swann Communication (Swann). If parents wish to watch their children in real time or within the 24-hour window before the camera is reloaded, they can download an application (app) on their cell phone, view the toddler room, and even make copies of the video. Ms. Piovera stated that she is "very comfortable" with video cameras in each classroom because parents are entrusting their children to her care and want to see how they are being treated. Although the original surveillance video long since has been erased, A.M.'s mother recorded a video of the incident on her cell phone using an app provided by a third party and not Swann. The video has been accepted in evidence as Department Exhibit 2. The video is fairly clear, is a "little fast," and is the only known recordation of the incident still available. Ms. Piovera testified that she has watched it more than 20 times. The Department's allegations are based wholly on its interpretation of the cell phone video. The incident itself lasts less than a minute. A.M., then 18 months old, and not a one-year-old, as stated in the Administrative Complaint, frequently had allergies or nasal problems, which caused a runny nose or cough. His mother authorized the use of a nebulizer for inhaling medications, but it never was used at the facility. The morning of May 30, 2018, was no different, and A.M. came to the facility that day with a runny nose. Although the mother denied her son had allergies, his runny nose was brought to her attention when she brought the child in that morning. She replied that she had been giving him medicine but "nothing was working." Around 10:21 a.m., and not 11:00 a.m., as stated in the Administrative Complaint, Ms. Piovera entered the toddler room to assist Ms. Pacheco in redirecting the children to a new activity, i.e., to sing a song 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 clean 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 then continued with painting activities. A Department witness acknowledged that there was no hitting, spanking, shaking, slapping, or pushing. However, based on her viewing of the incident, she contends Ms. Piovera "kind of twisted his body," "pulled his arms when she first grabbed him to get him to sit down in his chair," "appeared [to be] squeezing his arms," and "felt" there was "forcing or restricting movement" when she turned the child around. There is less than clear and convincing evidence to support these allegations. Around 2:15 p.m., the child was picked up by his mother. Although the mother had viewed the incident on her cell phone as it happened, she did not say anything to Ms. Piovera at that time or contact the Department to discuss any concerns.3/ Notably, when the incident occurred, the mother was in a dispute with Ms. Piovera over an unpaid bill ($1,345.00), which Ms. Piovera says still is outstanding. The mother contends the bill has been paid, but Ms. Piovera says the dispute is headed to small claims court. The mother withdrew the child from the facility that day without giving any explanation to Ms. Piovera, and he never returned to the facility. On June 13, 2018, A.M.'s mother raised the May 30 incident with Ms. Piovera for the first time in a series of text messages. Around the same time, she posted the video in a message on her Facebook page. On June 20, 2018, or three weeks after the alleged violation, A.M.'s mother reported the incident to the Department. The mother admits she always was behind in her payments, and, on the day she filed her complaint, she was asked by Ms. Piovera to stop by the facility and pay the balance owed. The Department requested that a child protective investigator (CPI) from the Manatee County Sheriff's Office investigate whether child abuse occurred. A Department representative and the CPI conducted a joint inspection on June 20, 2018. On July 16, 2018, the CPI issued a finding that the charge was unsubstantiated. Resp. Ex. A. Notwithstanding the CPI's determination, the Department points out that this proceeding involves a violation of Handbook standards, while the CPI was looking for indicators of abuse, which are governed by chapter 39. Thus, it contends that the CPI could have a non-substantiated finding in regards to abuse, but Ms. Piovera still could be cited for a rule violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint, with prejudice. DONE AND ENTERED this 8th day of May, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 8th day of May, 2019.
The Issue At issue is whether Respondent committed the Class II violation alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is authorized to regulate child care facilities pursuant to sections 402.301 through 402.319, Florida Statutes. Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301 through 402.319. Chappell operates at eight child care locations in Duval and St. Johns Counties, admitting children from the ages of six weeks to five years. Chappell also has an after school program for children ages five to eight, and a summer camp for children ages five to ten. Chappell is licensed to operate the Child Care Facility at 8400 Baycenter Road, Jacksonville, Florida, pursuant to License Number C04DU0093. The facility on Baycenter Road is commonly called Chappell’s Deerwood facility. Gretrell Marshall works for the Department as a Licensing Counselor. She inspects child care facilities and family daycare homes to ensure they are not operating in violation of Department standards. She has worked for the Department for two years. Ms. Marshall’s previous experience includes operating a family daycare home for two years, and seven years as the owner and director of a licensed child care facility in Jacksonville. She has worked as an infant and toddler development specialist and holds a bachelor's degree in psychology. On October 10, 2019, Ms. Marshall went to Chappell to investigate a parent’s complaint that a child at the facility was repeatedly biting other children. The Department’s rules require child care facilities to document all accidents and incidents that occur while a child is in the care of program staff. The incident reports must be completed on the same day the incident occurs. The documentation of the incident must be shared with the child’s parent or guardian on the day the incident occurs. Chappell’s “accident/incident report” form contained spaces for the name and age of the child, the names of the teachers and other adults present, and the date and time of the incident. It had multiple choice check- boxes for location (classroom, playground, bathroom, cafeteria, or “other”); markings (abrasion, bite, bruise, bump, cut/tear, fracture, puncture, red mark, rug burn, scratch, sprain, or “other”); appendage (a list of 26 body parts); and first aid given (irrigate, antibacterial soap, bandage, ice pack, splint, or “other”). The form also included space for a narrative description of the accident or incident, and whether the parent was called. Ms. Marshall found several accident/incident reports that student E.W., a two-year-old boy, bit other children and a teacher between August 21 and October 4, 2019. On August 21, 2019, E.W. bit another student in the back while jostling for position in a line. The skin was not broken and the bite did not require first aid. Chappell recorded that the bite left bite marks. An August 27, 2019, incident report described two biting incidents on the same day. First, E.W. bit another student “just because” and pulled another student’s hair. Then, E.W. indicated to the teacher that he had to use the bathroom. The teacher took him to the bathroom but the child just ate toilet paper and urinated on himself. When the teacher tried to change his diaper, E.W. bit and kicked the teacher. For the August 27, 2019, incident, Chappell’s accident/incident report form left blank the first aid treatment space. The report noted the bites left bite marks. On September 11, 2019, E.W. bit another child in the back. Chappell’s accident/incident report recorded that first aid was administered, but did not specify the form of treatment. The report noted that the bites resulted in bite marks. Chappell reported that two biting incidents occurred on September 30, 2019. E.W. bit another student on the back during circle time. Later, when the students went outside to play, E.W. bit another child on the back without provocation. The teacher talked to him about being gentle with friends. The accident/incident report left blank the space for reporting first aid. On October 2, 2019, E.W. bit another student in the back. A different form, called a “behavior incident report,” was used by Chappell to record this incident. This form did not contain the check-boxes of the accident/incident report but simply provided space for a narrative “description of behavior incident.” The narrative stated that E.W. and other students were on the castle playhouse in the playground when E.W., “unprovoked,” bit another student on the back. Chappell did not record whether this bite left marks or required first aid. On October 4, 2019, at 12:40 p.m., E.W. bit another student on the right shoulder during play time in their classroom. The accident/incident report recorded that the bite left a bite mark. The space on the form to indicate whether the bite required first aid was left blank. A separate accident/incident report completed on October 4, 2019, documented that E.W. bit another student at 3:15 p.m., while the children were lining up at the door of the classroom. The report did not indicate whether there were bite marks or whether first aid was required. Chappell intended to suspend E.W. for one day on October 4, 2019. The school phoned the parents but was unable to get anyone to come in and pick up E.W. Therefore, the suspension was enforced on the next school day, October 7, 2019. The school warned the parents that another biting incident would result in the child’s permanent removal from Chappell. On October 23, 2019, E.W. bit another child at the school. Chappell expelled E.W. Nancy Dreicer, the Chief Executive Officer of Chappell, testified that there is a societal problem with small children being suspended and expelled from childcare centers. She stated that more children are expelled from child care centers in the United States than are expelled from grade schools and high schools. Ms. Dreicer testified that disciplinary expulsions were problematic for multiple reasons. Behaviors such as biting are common among two year olds, but a child that age learns nothing from being suspended or expelled from school. The parents are forced to find another child care facility and whatever behavioral issue is causing the child’s misbehavior is not addressed. The problem is merely pushed off onto a new child care facility. Ms. Dreicer testified that in 2019, Chappell received a grant from Hope Haven Children’s Hospital and the Community Foundation of Jacksonville to have a behavioral psychologist at the Deerwood facility to work with the children and to train the teachers in dealing with behavior problems. The psychologist worked with E.W., observing the child in the classroom, tracking the timing of his misbehavior, and looking for triggers to his actions. He worked with the teachers on how to identify triggers. Ms. Dreicer pointed out that suspending the child would have meant that the psychologist could not observe him. She noted that nothing approaching a serious injury had occurred, and added that the school would not have kept E.W. in the classroom if there was any possibility of his being a danger to the other students. She believed that E.W.’s behavior was improving, but that biting is such a natural part of a two year old’s development that it was very difficult to stop it completely. The Department has adopted a Child Care Facility Handbook (the “Handbook”), intended to be used on conjunction with sections 402.26 through 402.319. The Handbook has been adopted by reference in Florida Administrative Code Rule 65C-22.001(6).1 The Introduction to the Handbook states, “To protect the health and welfare of children, it is the intent of the Legislature to develop a regulatory framework that promotes the growth and stability of the child care industry and facilitates the safe physical, intellectual, motor, and social development of the child.” Section 2.8 of the Handbook, titled “Child Discipline,” provides, in relevant part: The child care facility shall adopt a discipline policy consistent with Section 402.305(12), F.S., including standards that prohibit children from 1 The cited rule references the May 2019 edition of the Handbook. However, the version of the Handbook provided on the Department’s website and through the hyperlink provided in the rule as published in the Florida Administrative Register is dated December 2019. To further complicate matters, the version of the Handbook introduced at the hearing was dated October 2017. The October 2017 and December 2019 editions are identical in all respects relevant to the determination in this proceeding, which leads to the inference that the May 2019 edition is likewise identical. being subjected to discipline which is severe, humiliating, frightening, or associated with food, rest, or toileting. Spanking or any other form of physical punishment is prohibited. The child care facility operators, employees, and volunteers must comply with written disciplinary and expulsion policies. Verification that the child care facility has provided the parent or guardian a written copy of the disciplinary and expulsion policies used by the program must be documented on the enrollment form with the signature of the custodial parent or legal guardian. * * * E. A copy of the current[2] disciplinary and expulsion policies must be available for review by the parents or legal guardian and the licensing authority. Providers must have a comprehensive discipline policy that includes developmentally appropriate social-emotional and behavioral health promotion practices, as well as discipline and intervention procedures that provide specific guidance on what child care personnel should do to prevent and respond to challenging behaviors. Preventive and discipline practices should be used as learning opportunities to guide children’s appropriate behavioral development …. (emphasis added). Pursuant to section 2.8.A of the Handbook, Chappell has adopted and implemented a discipline policy, titled “Child Management Behavior Protocol.” Chappell’s policy sets forth the following mission statement: Chappell recognizes the importance of promoting acceptable behavior and methods of discipline within the child care setting. We believe that all 2 The word “current” is not in the October 2017 edition of the Handbook. This is the only relevant difference between section 2.8 in the October 2017 Handbook and section 2.8 in the December 2019 edition of the Handbook children have the right to expect positive approaches to discipline, which foster self-esteem, respect, tolerance and self-control. Behaviors which injure people either emotionally or physically or damage property are real problems to adults/staff and the other children. These behaviors must be dealt with in an appropriate manner. After setting forth a catalogue of acceptable and unacceptable methods of discipline to be applied in specific instances of misbehavior, the Chappell discipline policy next stated the process to be followed “In The Case of Persistent Inappropriate Behavior” as follows, in relevant part: The child’s parents/caregivers will be involved at first hit, kick, thrown toy, etc. The Director will discuss the situation with the parents/caregivers in an attempt to find the possible cause of the behavior. The Director and the parents/caregivers will together develop strategies for dealing with the unwanted behavior, which could be implemented at home. Should it be necessary and with the consent of the parent/caregiver, advice and assistance will be sought from relevant external specialists to address the matter. After two incidences in one week, which caused or could have caused injury to self or others, the child will be suspended for one day, and after five such incidences the child will be suspended for a week. However, if the Director at any time feels the behavior is extreme and dangerous to other children or teachers, the child will be removed from the Center. This may be a temporary or permanent expulsion…. There was no question that the Chappell discipline policy meets the requirements of the Handbook. The Class II violation alleged by the Department is that Chappell failed to follow its own discipline policy in the case of E.W., thereby violating section 2.8.B of the Handbook, which requires child care facilities to “comply with written disciplinary and expulsion policies.” The Department points out that the Chappell discipline policy specifies that after two incidences in one week that “caused or could have caused injury,” the child will be suspended for one day, and that five such instances will result in one week’s suspension. The Chappell policy gives the Director discretion to remove a child for extreme or dangerous behavior. The Department notes that the policy does not give the Director discretion to waive the stated discipline schedule. Ms. Marshall calculated that under Chappell’s written policy, E.W. should have been suspended for one day after the two biting incidents on August 27, 2019, and again following the two biting incidents on September 30, 2019. Chappell did not suspend E.W. on either occasion. Ms. Marshall calculated that in the space of the five days between September 30 and October 4, 2019, E.W. was involved in five biting incidents. Ms. Marshall testified that, under Chappell’s policy, E.W. should have been suspended for one week. Chappell gave E.W. a one-day suspension on October 7, 2019. Ms. Dreicer conceded in the abstract that biting is an act that could cause injury to another child. She did not concede that E.W.’s biting was injurious or threatened actual injury to the other children at the child care facility. It was a developmental behavior issue that the facility’s staff and a psychologist were attempting to correct. Chappell ultimately decided that it had to expel the child, but only after making every effort to correct the biting behavior. Chappell argued that neither the Department’s Handbook nor Chappell’s policy defines the term “injury.” Ms. Marshall believed that a bite is always an injury. It leaves a mark, however temporary, and requires some treatment. Chappell noted that none of the bites recorded in its accident/incident reports broke the skin of the other child or required treatment of any kind. Ms. Dreicer and the staff of the Deerwood facility made a determination that E.W.’s behavior presented no danger of injury to the other children. Chappell argues that, whatever the literal language of the written policy, the director of a child care facility must be allowed to exercise discretion on a case-by-case basis in making disciplinary decisions. Chappell points to section 2.8.E of the Handbook, with its admonitions that a comprehensive disciplinary policy must be “developmentally appropriate” and that discipline practices “should be used as learning opportunities to guide children’s appropriate behavioral development.” Ms. Dreicer forcefully made the case that suspending or expelling a two year old teaches nothing and abdicates the facility’s responsibility to the child. Neither party appeared to take note of another section of the Chappell disciplinary policy. The undersigned observes that, while the language of the Chappell policy quoted above appears to prescribe a rigid disciplinary process admitting no exceptions, another portion of the policy gives Chappell discretion as to when the disciplinary process commences: After an incident, our first step: We will tend to the injured child to see if medical attention is needed. We will give the child who hit, kicked, etc. an opportunity to apologize and provide comfort. We will notify both sets of parents and prepare an incident report (Attachment 1). DCF requires the report be signed by a parent or caregiver the day of the incident. If behaviors persist, Chappell will follow the process management flow chart. (Attachment 2)[3] (emphasis added). 3 The referenced attachments were not part of the record. From the context, the undersigned has inferred that the referenced “flow chart” was a graphic representation of the disciplinary procedure quoted at Finding of Fact 26 above. The underscored language, read together with the title of the discipline policy, “In The Case of Persistent Inappropriate Behavior,” gives Chappell discretion to determine when the child’s behaviors have reached the stage of “persistence” warranting commencement of the disciplinary process. The Department did not account for this discretion in finding that Chappell violated section 2.8.B of the Handbook. Ms. Dreicer’s testimony was consistent with the Chappell disciplinary policy. Though the facility eventually expelled the child, it exercised the discretion afforded by the policy to determine whether the child’s behavior was potentially injurious and whether the behavior was persistent enough to warrant invocation of the disciplinary process. Clear and convincing evidence was not presented that Chappell committed the Class II violation alleged by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of May, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2020. COPIES FURNISHED: Nancy Drier Chappell Schools, LLC 8400 Baycenter Road Jacksonville, Florida 32256 Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway Jacksonville, Florida 32231-0083 (eServed) Jesse Nolan Dreicer, Esquire Tassone, Dreiver & Hill 1833 Atlantic Boulevard Jacksonville, Florida 32207 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
