The Issue Whether Respondents should be granted a family foster home license.
Findings Of Fact Petitioners, Alfonso and Lynda Zapata, applied to be licensed as a family foster home care with the Department through the Devereux Foundation. The Devereux Foundation maintains a network of foster homes to serve parents who need to temporarily place their children in foster care (private placements) and dependent children in the custody of the Department (public placements). Previously, Petitioners had been licensed as a family foster care home with the Department through Florida Baptist Children's Home (Florida Baptist). Like the Devereux Foundation, Florida Baptist maintains a network of foster homes to serve parents who need to temporarily place their children in foster care and dependent children in the custody of the Department. Petitioners had withdrawn form the relationship with Florida Baptist after a disagreement with Florida Baptist personnel over the removal of a child from their home and reunification of that child with her mother. In 2001, about half of the children placed in Florida Baptist's homes were placed by the Department in connection with cases of child abuse, or abandonment, while the other half were private placements by families whose circumstances necessitated that their children temporarily reside elsewhere. In July 2001, Petitioners had two foster children living in their home. One of these children, T.D., also known as J., had been placed in the Petitioner's home by the Department. The other, C.R., a three-month-old boy, had been privately placed in the home by Florida Baptist at the request of the child's mother, E.R., who was single. E.R. had placed her child in Florida Baptist care because she had enlisted in the United States Army and was undergoing basic training out of state. E.R. had enlisted in order to provide her family a better life. It was initially anticipated that E.R. would be gone six months, but due to injuries sustained during basic training, she was actually gone for eight or nine months. There was no evidence of abuse, neglect or abandonment on E.R.'s part. During C.R.'s stay, Petitioners developed a negative impression of E.R. They did not think that E.R. called or wrote frequently enough. Petitioners had commented to Florida Baptist staff that E.R. was an unfit mother, that Petitioners provided C.R. with a better home than E.R. could, that E.R. did not love C.R., and that Petitioners could love C.R. more than E.R. could. Petitioners' opinion was based on their belief that no really good mother would take a job which required her to be away from her child for extended periods and a belief that C.R.'s grandmother was physically abusive towards C.R. Unfortunately, Petitioners let their beliefs about appropriate parenting interfere in their duties as foster parents to aid in reunification of a child with that child's legal parents. Florida Baptist staff also believed that Petitioners had become too attached to C.R., which caused them to attempt to undermine the Department's later attempts to reunify mother and child at the planned time E.R. would return from basic training and be able to provide a home to C.R. In late July 2001, Florida Baptist staff also became concerned about other behavior exhibited by Petitioners involving confidentiality issues and concerned that the Department had removed T.D. (aka "J.") from Petitioners' home. The behavior concerning confidentiality arose because Mrs. Zapata had discussed the fitness of E.R. to be C.R.'s custodial parent with a Department employee. C.R. was not a Department placement. However, it should be noted that the discussion was with a Department employee involved in the fostering program. Such an employee could reasonably be viewed as a person to report any suspected abuse or neglect to. In this instance, the conversation did not involve a report of abuse or neglect, but concerned Petitioners' belief that E.R. was not a good mother. On the other hand, the evidence was unclear whether the same confidentiality requirements regarding public placements by the Department appertain to private placements by the parents. The incident does cast doubt on Petitioners' awareness and desire to comply with privacy considerations should they be licensed by the Department. During the month of July 2001, T.D., also known as "J.", lived in Petitioner's home. T.D. was a little less than a year old at the time and had been placed in Petitioner's home by the Department because of ongoing juvenile dependency proceedings. On July 31 or August 1, 2001, the Department counselor, Wendy Cheney, picked T.D. up at Petitioner's home to take him to a doctor's appointment. Ms. Cheney noticed that there were crumbs and dirt in the car seat in which Petitioners had placed T.D. Ms. Cheney also noticed that T.D.'s clothes and diaper bag had a strong odor of spoiled milk. A crust also appeared on the nipple of the baby bottle and the eye medicine bottle Mrs. Zapata gave her to take with T.D. to the physician's appointment. During the preceding month, Ms. Cheney had visited Petitioners' home on at least a weekly basis to monitor T.D.'s situation. On many of these occasions, Ms. Cheney also observed that T.D.'s clothes had the same sour milk smell she experienced during the doctor's appointment. She also noticed during these visits that the nipples of T.D.'s baby bottles were not properly covered. On one occasion, Ms. Cheney saw T.D. drop his pacifier and then observed Mrs. Zapata pick it up and replace it in T.D.'s mouth without washing it off. This is of particular concern, as Petitioners had a long-haired dog whose hair was apparent on the floor of Petitioners' home. The Department removed T.D. from Petitioners' home because of these observations. Again, these observations cast serious doubt on the quality of hygienic care provided by Petitioners to foster children. There was no evidence offered to contradict the apparent lack of good hygienic care provided to T.D. However, there was also no evidence that Petitioners' care of T.D. constituted neglect or abuse of T.D., since a finding of neglect or abuse requires demonstration of harm or significantly dangerous conditions. Because of these concerns, Florida Baptist staff agreed that C.R. should be removed from Petitioners' home at least until these issues sorted themselves out. On August 1, 2001, Florida Baptist social worker Sue Kiser telephoned Mr. Zapata and scheduled an appointment for 4:30 p.m., on August 2, 2001, to discuss the reunification of C.R. with E.R. Later that day, Florida Baptist staff decided that since E.R. had recently returned from basic training, the optimum way of accomplishing reunification was to have E.R. meet Ms. Kiser and C.R. at a previously scheduled medical appointment on August 2, 2001, following which C.R. and E.R. would stay together at another foster home. Florida Baptist social worker, Jackie Barksdale, communicated this plan by telephone to Mr. Zapata on August 1, 2001. Mr. Zapata became angry and stated that he refused to allow C.R. to leave his home and go to visit with E.R. He accused Ms. Barksdale of "screwing with" C.R.'s life and committing "child abuse." He promised that "heads would roll" and disparaged E.R.'s family. Ms. Zapata then got on the telephone. She also accused Ms. Barksdale of child abuse and threatened to call the abuse hotline on Florida Baptist. Since no abuse reports were made by Petitioners, these threats were made as a bluff in an attempt to coerce Florida Baptist to leave C.R. with Petitioners. Given this conduct, the staff of Florida Baptist felt they had little choice but to remove C.R. from Petitioner's home. C.R. was removed from Petitioners' home on August 2, 2001. C.R. stayed in the other foster home without incident for about five weeks. C.R. and E.R. were then reunited, and continue to live together as a family. No reports of any problems between C.R. and E.R. have been received since that time. These facts clearly demonstrate Petitioners' unwillingness to cooperate in reunification plans for a child and mother. Petitioners permitted their low opinion regarding C.R.'s mother to interfere with their duty as foster parents. There was no evidence that Petitioners' attitude regarding the parents of foster children would not cause future interference in reunification efforts should their application for licensure be granted. An abused child, V.V., was placed in shelter care with Petitioners. V.V. had sustained a broken arm from abuse she had suffered. She stayed less than three days with Petitioners because her crying kept them up at night and interfered with Mrs. Zapata's home schooling of her biological children. Petitioners acted appropriately in requesting the removal of the child when it became apparent that the placement could not work out and does not demonstrate a lack of qualification for licensure. Finally, a pregnant teenage girl who wished to place her child with Florida Baptist wanted to see the home her child was to live in. Florida Baptist arranged for the girl to look at Petitioners' home. After the visit, Petitioners asked Florida Baptist never to ask them to submit to such an inspection, as they felt they were under some heightened level of scrutiny. Florida Baptist staff explained that parents frequently made this request, and Petitioners repeated that they did not wish to undergo it again. Petitioners request is troubling since one of the duties of the foster parent is to work with the biological parent of a foster child. Again, Petitioners' negative attitudes toward the parents of foster children demonstrate that Petitioners' application for licensure should be denied.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application for a foster care license submitted by Petitioners Alfonso and Lynda Zapata. DONE AND ENTERED this 15th day of April, 2003, 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 15th day of March, 2003. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Room 252-A Tallahassee, Florida 32399-2949 Alfonso Zapata Lynda Zapata 1947 Treeline Drive Tallahassee, Florida 32303 Paul F. Flounlacker, 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 issue presented is whether Petitioner's license to operate a child care facility should be revoked.
Findings Of Fact At all times material hereto, Geraldine Lee was the owner and operator of a child care facility, licensed by the State of Florida and known as The Children's Palace II. On November 14, 2004, there were eighteen children in the care of The Children's Palace II. Each child was signed in by the child's parent when the child arrived each morning, and one of Lee's employees then signed that the child was actually there. The child was then signed out when the child was picked up that day. The facility was open until 10:00 p.m. However, the facility closed earlier if all the children had been picked up before that time. On November 14 when Taunya Patterson brought her six- month-old son Kenneth Geddes to the facility, she neglected to sign in her son, and no employee counter-signed. Thus, there was no written record that he was there. At that time, Geddes had been receiving child care at The Children's Palace II for two months. When Patterson returned to the facility at 9:00 p.m. to pick up her son, she found the facility closed, locked, and dark. She summoned the police, who, in turn, summoned Geraldine Lee, who came to the facility. She unlocked the facility and Patterson's son was in the crib where he normally slept, lying on his stomach and crying. The infant was unharmed. Geraldine Lee had left the facility that day at approximately 7:30 p.m. Before leaving the facility, she walked through but did not see any children still there. She left her employee Theresa Leverett in charge of the facility. At approximately 8:30 p.m. Lee returned to the facility to pick up her granddaughter. Leverett was leaving the facility when Lee was picking up her granddaughter. On December 3, 2004, the Department notified Lee that it was revoking her license to operate a child care facility effective immediately. On August 18, 2004, Lee had been issued a provisional license for The Children's Palace II, effective August 20, 2004, to February 19, 2005. Once before, The Children's Palace II had been issued a provisional license but had been issued a regular license thereafter. Prior to November 14, 2004, no child had been left alone in the facility. The only prior similar incident occurred when an employee walked out of a room where a child was present, thereby leaving the child unsupervised.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the Department failed to meet its burden of proof and dismissing its notice of intent to revoke the license of The Children's Palace II. DONE AND ENTERED this 6th day of December, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 6th day of December, 2005. COPIES FURNISHED: Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Acting General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the after school child care program operated by the YMCA on the campus of Keeth Elementary School under a contract approved by the Seminole County School District, exclusively for children ages 5 Kindergarten and older, is required to be licensed as a child care facility, pursuant to the provisions of Sections 402.301-402.319, FLORIDA STATUTES(1988 SUPP.).
Findings Of Fact Respondent, Department of Health and Rehabilitative Services, is charged with the responsibility to enforce the statewide minimum standards for the care and protection of children in child care facilities, as set forth in Secticns 402.301-402.319, Florida Statutes (1987). Petitioner, YMCA of Central Florida, Inc. (YMCA), is a not-for-profit corporation licensed in Florida. The YMCA is a local membership organization affiliated with the national YMCA whose primary purpose is to provide activities that contribute to the development of good character and good sportsmanship of children and other family members in Seminole County. For several years, the YMCA has operated an after school child-care program for children five years old and older on the campus of Keeth Elementary School. The program is staffed by a YMCA counselor who participates in the program as the child-care counselor. The program was licensed as a child day care facility under the name YMCA/Keeth School Age Child Care by HRS, License Number 987-1. Their current license to operate this facility expired in 1988. Keeth Elementary School is a public elementary school owned and operated by the Seminole County School District. The YMCA operates the program under an oral year-to-year agreement with the School Board of the Seminole County School District. On August 22, 1988, an inspection of the facility (the buildings and grounds of the Keeth Elementary School) by an HRS inspector revealed that the facility failed to substantially comply with the requirements of Chapter 10M-12, Florida Administrative Code, which would be sufficient to sustain the denial of the license renewal. By letter dated September 12, 1988, Respondent advised the Petitioner that their application for relicensure was denied. Petitioner was directed to cease operation within 15 days of receipt of this letter unless the cited deficiencies were corrected and Petitioner re-applied for a license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's after school child-care program continue to operate without the requirement of a license from HRS, so long as they continue under contract with the School Board with the same terms and conditions as presently exist. DONE AND ENTERED this 18th day of May, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 18th day of May, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the Petitioner. Petitioner's Proposed Recommended Order does not contain specific findings of fact but consists primarily of legal argument which has been adopted in substance. COPIES FURNISHED: William E. Ruffier, Esquire Sanders, McEwan, Mims and Martinez, P.A. Attorneys at Law 108 East Central Boulevard Post Office Box 753 Orlando, Florida 32802-0753 James A Sawyer, Jr., Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson, Suite 911 Orlando, Florida 32801 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
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 Whether Petitioners should be licensed as a family foster home.
Findings Of Fact The Petitioners are an Hispanic couple in their late fifties. At the time of application, B.A. (13 years old), and his sister S.A. (15 years old), lived with the Marriagas. Both were being raised by the Petitioners. At the time of hearing B.A. was living with the Petitioners. On August 25, 1999, Petitioners submitted their application/packet for licensure as a family foster home. Other than those raised at this hearing, Petitioners meet all requirements for becoming a foster home. They have completed the MAPP qualifications. They also understand and are able to handle problems peculiar to caring for foster children. They understand the obligations and responsibilities of foster parents. Indeed, Ms. Marriaga is not employed and is able to devote her time and attention to any children in her home. By statute, the Department is required to interview at least two neighbors of an applicant for foster care. In conducting the required interviews for the Marriaga application, a Department licensing counselor was informed that there were concerns among some of the neighbors interviewed about how the Marriagas cared for and/or supervised their 13-year-old grandson, B.A. Neighbors reported to Mr. Lewis that B.A. appeared at times to be unsupervised and locked out of the Marriagas' home. Neighbors also indicated that B.A. complained of being hungry. Other neighbors reported that the Marriagas were good parents and would make good foster parents. None of the neighbors testified at the hearing. No reliable evidence was submitted on the basis of these neighbors' assertions. Ms. Marriaga admitted that there were a few occasions when she would be out shopping for a short period when B.A. got home from school. These short periods were for no more than 5 or 10 minutes and were not frequent. She also stated that there was one occasion where B.A. was left unsupervised after school because Ms. Marriaga had to take her adult daughter to the hospital for emergency treatment for gangrene. She said she returned from the hospital within 30 minutes after B.A. got home. None of these absences were unreasonable, given B.A.'s age and level of responsibility. Neither incident supports a finding that the Marriagas are not qualified. B.A. did not have a key to the home to gain access on the occasions when Ms. Marriaga was not home when he got back from school. He could access the garage area and the backyard, but not the living areas of the home. The garage area was stocked with food and drinks. The fact B.A. does not have a key is not an unusual or unreasonable child-rearing practice. The lack of key does not support a finding that the Marriagas are not qualified especially since the Marriagas understand that foster child access requirements of the Department. Because of the concerns raised by the neighbors' reports, Mr. Lewis interviewed B.A. and his sister, re-contacted the neighbors to whom he had talked previously and interviewed two more neighbors in late October 1999. Some neighbors still had concerns about B.A.'s supervision, others did not. None of the neighbors testified at the hearing nor were sufficient facts introduced to conclude that these neighbors had any substantive basis for their opinion. The Licensing Evaluation submitted by John Lewis to the Family Services Counselor Supervisor recommended that the Marriaga's home be licensed for two children: Male or female, infant zero through eight years. This recommendation was submitted after Mr. Lewis went to the Petitioners' home to finalize the family profile report. At that time, Mr. Lewis the advised Petitioners that two of the four neighbors interviewed expressed reservations about the level of supervision a foster child would receive in their home. The Petitioners assured Mr. Lewis that their grandson B.A. is strictly supervised and well cared for. At hearing, B.A. concurred with his grandparents. Mr. Lewis did not ask the Petitioners for the name of an emergency back-up person or to provide him with an emergency care plan. The Petitioners have a strong family support group. At the hearing Ms. Marriaga stated that her plan was to either be present or a relative would provide the needed back-up supervision. The Marriagas believed handling such a scenario would not be difficult because Ms. Marriaga was always available to be home. They stated at the hearing that in the event of an emergency the great-grandfather would care for B.A. or the foster children. The Petitioners do have an adequate emergency care plan for their grandson and the foster children. Mr. Lewis informed Mr. Marriage by telephone in early December 1999, that their home would not be licensed. However, on March 15, 2000, Petitioner wrote a letter to the Department requesting action on their application. Formal, written notification of denial was provided on March 29, 2000.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioners' application be granted. DONE AND ENTERED this 12th day of December, 2000, 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 12th day of December, 2000. COPIES FURNISHED: Carlos A. Marriaga Evangelista Marriaga 4514 Southeast 10th Place Ocala, Florida 34471 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for licensure and regulation of child care facilities operating in the State of Florida. The Respondent is a licensed child care facility, Florida license number 400-9, located at 1221 South Washington Avenue in Apopka, Florida. On March 1, 2001, the Petitioner received a complaint related to alleged poor conditions at the Respondent facility, including unclean bathrooms, and unsupervised children. An investigator employed by the Petitioner was assigned to inspect the facility. He visited the child care center on the afternoon of March 1, 2001, and recorded his observations on an "inspection checklist." On March 1, 2001, the facility was observed to be "dirty and cluttered." One of the restrooms was unclean and apparently not functional. Additionally, three infants were left alone in a room without adult supervision. The closest adult to the infant room was conducting business with a customer and was not within sight of the children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a Final Order imposing a fine of one hundred dollars ($100) against the Respondent. DONE AND ENTERED this 29th day of August, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street, Suite 1106 Orlando, Florida 32801 Carol Wiggins Central Avenue Child Care 1221 South Washington Avenue Apopka, Florida 32703 Virginia A. Daire, 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
