The Issue The issue addressed in this proceeding is whether Respondent's child care facility license should be disciplined for alleged violation of chapter 402, and if so the appropriate penalties. Neither party timely submitted Proposed Recommended Orders.
Findings Of Fact Respondent Donna J. Downing owns and operates a child care facility known as the Downing House, located at 8508 Lorento Street, Panama City, Florida. The child care facility is also her family's residence. She lives with her husband, son, and daughter who help operate the facility and who have been successfully screened by HRS. Ms. Downing was licensed in 1985 and holds a currently valid license. Her license is endorsed to allow her to operate her facility during nighttime hours. In April 1988, HRS became concerned that the operation of the Downing House into the night was proving too much for the husband and wife team, since HRS regulations require an adult to be present and awake during the night. HRS, therefore, inquired of the Downings concerning their proposed arrangements to ensure the presence of an awake adult. In order to continue to operate into the night, Respondent assured HRS that either she or her husband would be awake during the night while children were present on the premises. However, the evidence established that Respondent and her husband did not always live up to Respondent's representation to HRS. A standard mode of operation by Respondent was for both she and her husband to retire in the evening, leaving the front door unlocked so that the children's parents could pick up their children without disturbing the Downings. However, occasionally one of the Downings would stay up with the children. On May 5, 1988 a two year old male child was left at the Downing House by his mother for nighttime caretaking. At approximately 11:00 - 11:15 pm., Mr. and Ms. Downing had gone to bed. There were three children present at the Downing House when the Downings retired, including the two year old male child. The three children were asleep when Ms. Downing left them in the living room. No other adults were present. Ms. Downing had made arrangements for her adult son to look after the children when he got home from work. He was expected home at about 11:30 p.m. The son arrived home at approximately 11:40 p.m. When he arrived there were two children present. No method had been established by Respondent to advise her son of the number of children who should be present when he arrived home. He therefore did not realize that one child was missing. The son laid down on the couch in the living room and went to sleep. Sometime between the Downings going to bed and the arrival of their son, the two year old male child awakened, opened the front door and left the house. The child then unlatched the front yard gate and headed down Lorento Street towards its intersection with Laurie Lane. He then proceeded down Laurie Lane. At approximately 11:15 p.m., Denise Albert was driving down Laurie Lane. About two tenths of a mile from the Downing House, at 2414 Laurie Lane, Ms. Albert saw the missing child walking down the unlit and unpaved road. He was barefoot and in his pajamas. Ms. Albert stopped and questioned the child for 15 or 20 minutes. She could not obtain any information. She therefore called the Sheriff's office. Officer Troy Johns was dispatched at 11:30 p.m. The officer picked the child up from Ms. Albert and drove him around the neighborhood, including Lorento Avenue. The child could not or would not identify where he had come from and would not give his name. The child was more interested in the officer's gun and vehicle than in his surroundings. The officer took the child to the Sheriff's station and called HRS. Debra Young an HRS protective services investigator took the call and picked the child up from the Sheriff's office. She also could not establish the child's identity or address. She placed the child in a foster home. At 4:11 a.m. the Sheriff's office received a phone call in reference to a missing male child from the Downing House. The missing child was the child the Sheriff's office had turned over to Ms. Young. The Sheriff's office contacted Ms. Young. Mother and child were reunited the next morning. The call to the Sheriff's office from the Downing House had been prompted when the child could not be found after a search. The search ensued when, at approximately 3:00 a.m., the mother arrived to pick up her son. She discovered his absence and woke Respondent's son who in turn woke Mr. and Ms. Downing. One child remained. A second child had been picked up at approximately 2:30 a.m. by that child's mother. The son did not awaken and was not aware that the second child had been taken from the room in which he was asleep. The Downings searched the neighborhood for the missing child, including checking the Lagoon which is within a few blocks of the Downing House. The call to the Sheriff's office located the child. From 1985 until May 1988, Respondent was cited for the following violations of chapter 402, F.S. and the rules related thereto: September 3, 1985 Two gates in the play yard were left unlocked making it possible for children to have access to the road, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code, in that this was an obvious hazard. Medicine was left on the kitchen cabinet within the children's reach, in violation of Rule 10M-12.003(1) and (d), Florida Administrative Code. April 22, 1986 Cleaners were on the washer and dryer within the children's reach and Lysol and Windex were on the kitchen cabinet with food within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. No fire drills, in violation of Rule 10M-12.003(8)(a), Florida Administrative Code. October 1, 1987 Clorox, detergent, charcoal, briquettes, pliers, plastic bags, cigarette and cough drops were out at several locations throughout the facility and within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. An iron was left with the cord hanging over the table within the children's reach making it possible for the iron to be reached and pulled down on top of a child, in violation of Rule 10M- 12.003(1)(a), Florida Administrative Code. March 23, 1988 A medicine bottle containing medicine and tanning accelerator within the children's reach were located inside the facility and rose dust, Progreen, Spectracide ant killer and touch up paint were at several locations on the porch at the main entrance within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. Suntan lotion and tanning accelerator and three sand filled milk cartons, all located on the patio at the back of the house leading to the play yard and all within the children's reach, in violation of Rule 10M-12.003 (1)(b) and (d), Florida Administrative Code. The gate to the play yard was unlocked allowing children access outside the play area, in violation of Rule 10M- 12.003(4)(b), Florida Administrative Code. The store room containing a lawn mower and other tools and hazardous materials was left unlocked, in violation of Rule 10M-12.003(4)(b) , Florida Administrative Code in that it was an obvious hazard, with the children having access to said store room. A throw rug was on the steps leading to the patio and was not secure making an obvious hazard, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code. To Respondent's credit, all of the above violations were corrected within the time frames established by HRS. No fines were ever levied on the Respondent for the above violations. Also, to Respondents credit, the evidence disclosed that Respondent is generally a good caretaker of children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services revoke the nighttime operation endorsement on Respondent's license and impose an administrative fine of $1000. DONE and ENTERED this 14th day of March 1989, in Tallahassee, Lean County, Florida. DIANE CLEAVINGER 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 14th day of March, 1989. COPIES FURNISHED: John L. Pearce, Esquire 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32302 Donna J. Downing 8508 Lorento Street Panama City, Florida 32407 R. S. 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
The Issue Whether the Department of Health and Rehabilitative Services properly assessed an administrative fine in the amount of $150.00 on Lourdes Guanlao d/b/a Children's Paradise for violations of Sections 402.305(4) and 402.305(12), Florida Statutes, and Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code.
Findings Of Fact The Department issued a Child Day Care Facility license to Lourdes Guanlao to operate a facility known as Children's Paradise on October 9, 1991. From 1991 to 1994 Petitioner conducted routine facility inspections at Children's Paradise. These inspections included a determination whether the facility was operating with appropriate staff-to-child ratios. On April 1, 1992, Sandy Looney, Respondent's Senior Children's and Families' Counselor, conducted an inspection of Children's Paradise. When Ms. Looney arrived at the facility, Jeane Weiss was the only staff member present. There were seven children present in the center. Two children were under the age of one year and two children were between one and two years old. There should have been two staff members at the facility for the grouping of children present. Within ten minutes of Ms. Looney's arrival, Ms. Guanlao, arrived at the facility thereby correcting the staffing violation. Ms. Guanlao signed the inspection checklist. Ms. Looney discussed the staffing violation with Mrs. Guanlao and left a copy of the checklist with her. On July 27, 1993, Ms. Looney conducted an inspection of Children's Paradise. There were two staff members present at the facility, Ms. Weiss and Ms. Tan. There were sixteen children present in the center. Three children were under the age of one year, six children were between one and two years old. Three staff members were required for the grouping of children present. Ms. Weiss signed the inspection checklist. Ms. Looney left the checklist with staff. Before Ms. Looney left the premises, a staff member arrived for work thereby correcting the staffing violation. On August 17, 1994, Ms. Looney conducted a re-licensure inspection of Children's Paradise. There were two staff members present at the center, Ms. Weiss and Ms. Guanlao. There were twenty-one children present in the center. Seven were under the age of two. Three staff members were required if the children were separated in groups and four staff members were required if the children were all together. Ms. Weiss signed the inspection checklist. Mrs. Looney discussed the violation with Mrs. Guanlao who advised there was no substitute or other staff member available to call to work. Correction of the staffing violation was due on August 18, 1994. On August 18, 1994, Ms. Looney returned to Children's Paradise to determine if Ms. Guanlao had corrected the staffing violation. At that time there were eighteen children present. Six children were under the age of two. The same two staff members were present, Ms. Weiss and Ms. Guanlao. Mrs. Guanlao called a ten year old child to assist and again indicated that there was no adult available to call. Each time that Ms. Looney inspected Respondent's facility, she actually counted the number of children present and asked staff to verify their age. Evidence to the contrary is not persuasive. On August 29, 1994, Petitioner issued an Administrative Complaint imposing a fine in the amount of $75.00 for the August 17, 1994, staffing violation which Respondent had not corrected at the time of reinspection on August 18, 1994. This complaint properly advised Respondent of her right to a proceeding pursuant to Section 120.57(1), Florida Statutes. By letter dated September 13, 1994, Ms. Looney advised Ms. Guanlao that if she disputed the imposition of the fine, she could request an administrative hearing. The letter further stated that if Ms. Guanlao did not dispute the fine, she could pay it by mailing a check or money order. Ms. Guanlao tendered check number 1839 dated September 22, 1994, in the amount of $75.00 with "Adm. Fine" noted thereon. Ms. Looney transmitted this check to the fiscal office for deposit on or about October 7, 1995. There is no persuasive evidence that Ms. Looney told Ms. Guanlao she had to pay the administrative fine or risk losing her license. Gerald Stephens, Protective Investigator for Petitioner went to Children's Paradise on November 18, 1994. The purpose of his visit was associated with an investigation unrelated to this proceeding. When Mr. Stephens arrived at the facility, Ms. Guanlao was the only staff member present. He observed ten children in the center. The youngest child present at the center was eighteen months old. This number of children required at least two staff members to be present at the facility. Mr. Stephens interviewed one of Ms. Guanlao's staff members on the morning of November 18, 1994. There is no persuasive evidence that Mr. Stephens prevented the staff member from showing up for work that morning by telling her he was going to shut the facility down. Seven witnesses testified that they were volunteers at the center and had agreed to act as substitute staff on an as needed basis. Only two of these people had been properly screened and trained to work in a day care center or with children. One of these two volunteers did not receive her certification to work in a day care facility until October 3, 1994. Some of the volunteers had other full time jobs. Consequently, the times they were available to help Ms. Guanlao was limited. There is no evidence that Ms. Guanlao called any of these people to substitute on April 1, 1992, July 27, 1993, August 17, 1994, August 18, 1994 or November 18, 1994. Ms. Guanlao attended a training course that Ms. Looney conducted prior to October 9, 1991. One purpose of the course was to familiarize participants with the rules regulating child day care centers. During the training Ms. Looney provided Ms. Guanlao with written material including the Child Care Standards contained in Rule 10M-12, Florida Administrative Code. This rule sets forth staffing requirements and child discipline standards. Ms. Looney and Ms. Guanlao discussed subsequent changes in the rules related to staffing requirements. Ms. Looney also explained to Ms. Guanlao that the staffing requirements applied at all times the children were in the center regardless of the activity that was taking place. In other words, the staff-to- child ratios applied even if the children were napping. On August 19, 1994 Ms. Looney received a complaint involving the day care center on an unrelated licensing issue. As a result of the subsequent investigation, Ms. Looney was at the facility on August 24, 1994. During that visit, Ms. Guanlao admitted that she sometimes slapped the children on the hands as punishment.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That Petitioner Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine on Respondent Lourdes Guanlao d/b/a Children's Paradise in the amount of $150 for violating Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code. DONE and ENTERED this 16th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1996. COPIES FURNISHED: Frances S. Childers, Esquire District 3 Legal Office Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Box 3 Gainesville, Florida 32601 Michael M. Naughton, Esquire 3840-4 Williamsburg Park Boulevard Jacksonville, Florida 32257 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether Respondent committed the violations as alleged in the Second Amended Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact The Department of Children and Family Services is the agency charged with the responsibility of licensing child care facilities in the State of Florida. § 402.305, Fla. Stat. Respondent was licensed by the Department to operate a child care facility located in Gainesville, Florida. Joyce Vinson is the owner/director of ECCC, and has been since it opened in 2001. Ms. Vinson operated a home daycare for approximately five years prior to opening ECCC. Inadequate supervision--W.G. left behind1/ The Second Amended Administrative Complaint charged Respondent with inadequate supervision of a child in violation of Florida Administrative Code Rule 65C-22.2011(5). Specifically, the complaint alleges as follows: On July 22, 2010, staff members, F.S. and V.L., left a 7 year old disabled child, W.G., behind on a field trip to Duval Elementary. Staff with another provider found the child-who was unable to speak and identify himself-in a field behind the school. Law enforcement was called and the child was later picked up by his parents. Andi Lybrand is the training and curriculum coordinator for the Early Learning Coalition of Alachua County. Ms. Lybrand visited ECCC to observe curriculum and helped coordinate events. Ms. Lybrand organized an event (a play) that was held at Duval Elementary (Duval), to which children from day care centers were invited. Following the performance, a teacher from another facility brought a boy, W.G., into the cafeteria. The boy was found alone in a grassy area behind the cafeteria. He appeared to be upset. W.G. is a child with a disability. Ms. Lybrand placed a 911 call. While this was happening, the van carrying some of the ECCC children began the trip back to the center. Shortly after the van left Duval Elementary, an employee of ECCC, Felita Sallet, performed a head count, and realized that one of the Center's children, W.G., was not on the van. The van then immediately returned to Duval Elementary. A young woman who was an ECCC volunteer was sent into the building to retrieve W.G. Shortly thereafter, an ECCC employee, Vanessa Latson, appeared and advised that she was there to pick up W.G. However, the law enforcement officer who responded to the 911 call would not release W.G. to the volunteer or to Ms. Latson, but would only release the child to a parent. Ms. Vinson then received a call from the school principal, and returned to the school. W.G.'s mother, who did not testify, was notified of the situation and went to Duval to pick up her child. Ms. Vinson and W.G.'s mother left Duval together with W.G. in the mother's car. W.G.'s mother returned W.G. to ECCC for the rest of the day. Up until such time as ECCC was closed due to the Emergency Suspension Order, W.G. remained enrolled at ECCC. The Department's family services licensing counselor, Neshma Cruz-Gil, was advised by W.G.'s mother that she had no concerns for W.G.'s safety while in the care of ECCC. Alice Engram-Hammed, a child protection investigator, investigated this incident and verified findings of inadequate supervision. Transportation violation Ms. Cruz-Gil went to ECCC on July 22, 2010, to further investigate the inadequate supervision allegation set forth above. While there, she cited ECCC with additional violations, including that of transporting more passengers on the ECCC van then the designed capacity. Specifically, the Second Amended Administrative Complaint alleged that on July 22, 2010, two ECCC employees transported 18 individuals (2 adults and 16 children) in a van with a maximum capacity of 15 passengers. This allegation was based upon a determination made by Ms. Cruz-Gil when she arrived at ECCC following the Duval incident. As a family services counselor, Ms. Cruz-Gil is responsible for inspecting child care facilities and family child care homes. ECCC was one of the child care facilities that she inspected. Ms. Cruz-Gil examined a field trip log and interviewed ECCC staff in making her determination that too many people were on the van. The field trip log lists 15 children's names. As there were two staff members and a volunteer on the trip, Ms. Cruz-Gil concluded that there were 18 persons on a van with only 15 seat belts. However, according to Ms. Vinson, the field trip log was not a list of those riding on the van, but of those who attended the play. Three children were transported by car. This was verified by Ms. Sallet, who was on the van for the Duval fieldtrip, and who is "one hundred percent sure" that all of the children riding in the van were properly restrained and secured with seat belts. Ms. Sallet's testimony in this regard is credible and is accepted as fact. Inadequate supervision- May 17, July 22, and July 30, 2010 The Second Amended Administrative Complaint alleges that on July 30, 2010, the Department's licensing counselor observed W.G. in a classroom alone without adult supervision, using a computer; that the same violation occurred on July 22, 2010 (W.G. alone using a computer in classroom unsupervised); and that on May 17, 2010, O.K. was observed alone and unsupervised in a classroom. On May 17, 2010, Sabrina Roper, a speech language pathologist employed by Fundamental Therapy Solutions, Inc. (FTS), was at ECCC along with a speech assistant from FTS. Ms. Roper described Ms. Vinson as very receptive to FTS coming to ECCC to provide speech therapy to those children attending ECCC who were in need of that service, and as an advocate for the children. Ms. Cruz-Gil made a routine inspection of ECCC while Ms. Roper and the speech assistant were there. Ms. Cruz-Gil observed the speech assistant get up and leave the room, leaving the child who was receiving speech services in the room alone. Ms. Roper observed the speech assistant enter the room where Ms. Roper was working to collect materials to use while providing therapy to the child. Ms. Roper described the time the other therapist was in the room with her as "not long." On July 22, 2010, when arriving at ECCC to investigate the Duval incident, Ms. Cruz-Gil observed W.G. alone in a room working on the computer (the "computer room"). She saw the same student alone working on the computer again on July 30, 2010, resulting in citations for this violation on those two dates. Ms. Vinson, however, maintains that she was supervising W.G. in the computer room, that she got up to answer the door when Ms. Cruz-Gil knocked to enter; that the computer room is five feet away from the front door; and that W.G. was only alone in the computer room during the short time it took for her to open the door for Ms. Cruz-Gil. Ms. Vinson added that she did not have a floater that day. Unauthorized administration of medication The Second Amended Administrative Complaint charged Respondent with the following: On or about late June through early July 2010, without parental consent, Respondent's owner and director, J.V., deliberately administered Ex-Lax to a four-year-old child, J.P., making him sick. . . . On or about March through June 2010, the Respondent's owner and director, J.V., deliberately administered Benadryl to infants. These charges were based on allegations made by two former employees of ECCC, Angela Holmes and Caroline Rossman. Angela Holmes works as a teacher's aide at Alachua Academy Juvenile Detention Center. She was previously employed at ECCC from March 1 to June 4, 2010. Ms. Holmes accused Ms. Vinson of a litany of inappropriate actions including giving babies Benadryl to make them sleep. Ms. Holmes alleged that Ms. Vinson sent her to the store with money to purchase liquid Benadryl; that Ms. Vinson kept the Benadryl in her drawer; that she saw Ms. Vinson gave it to infants in the baby room to make them sleep on at least five occasions; and that no one else was in the room when this happened. Ms. Holmes' recollection as to when this happened during her short tenure with ECCC was uncertain and imprecise. Ms. Holmes did not report this to anyone until about two months after she left employment at ECCC. Another of the many inappropriate actions alleged by Ms. Holmes to have been committed by Ms. Vinson involved the unauthorized administration of Ex-Lax to a child. According to Ms. Holmes, Ms. Vinson sent Carolyn Rossman, another former employee of ECCC, to purchase Ex-Lax; that Ms. Vinson asked Ms. Holmes to give Ex-Lax to the child; that Ms. Holmes refused; and that she observed Ms. Vinson give the child Ex-Lax. Caroline Rossman worked at ECCC for a few months, primarily in the infant room. Ms. Rossman was uncertain as to when her employment started and ended. Ms. Rossman testified that Ms. Vinson gave her money to purchase Ex-Lax at the store, and that afterwards, she witnessed Ms. Vinson give the Ex-Lax to a child, JoP. Ms. Rossman was uncertain as to where in the daycare facility this occurred, but described it as "up front." Ms. Rossman was also uncertain as to when this happened during her employment. Generally, Ms. Rossman's testimony was confused as to the facts, imprecise, and not distinctly remembered. Raellen Hale is the mother of JoP and JaP, who attended ECCC for a few months in 2010. According to Ms. Hale, JoP has been diagnosed with global disability disorder, which affects his motor skills, including his bowel and bladder continence. JoP was four years old during the time he attended ECCC. During the last month JoP attended ECCC (May 2010), JoP complained to his mother that his "bottom" and his stomach were hurting, to a point that Ms. Hale took JoP to the doctor. During this period of time, Ms. Hale recalls that Ms. Vinson would call her "where it seemed like every Friday at exactly 12:00" telling her to pick up JoP because he had diarrhea. According to Ms. Hale, JoP's frequent bouts with diarrhea stopped when he stopped attending ECCC. The attendance records, however, reflect no attendance on two consecutive Fridays in May for Ms. Hale's two children. On the other two Fridays in May, Ms. Hale signed JoP out once, and JoP's uncle or father signed him out the other Friday. The attendance records for May 2010 reflect that on the Fridays in May on which her children attended, they were signed out mid-to- late afternoon. According to Ms. Hale, she was not always able to pick up her children right after being called. The records reflect, however, that she only signed her children out of ECCC one Friday in May. Several employees of ECCC who testified describe ECCC in an entirely different light than these, and other related, alleged events. Frewoini Ghevrghergish (referred to by all as "Ms. Frewoini") is employed by ECCC and has been so employed for 10 years, primarily in the toddler room.2/ In addition to working there for 10 years, all four of her children attended ECCC at various ages. Ms. Frewoini never witnessed Ex-Lax or Benadryl administered by Ms. Vinson or by any other staff member. On the contrary, Ms. Frewoini described a procedure that was followed before a child received medication. That is, a parent was required to sign a medication authorization form containing information as to when and how much of a medicine was to be administered. "If they don't sign, we don't give them." Felita Sallet was employed by ECCC from 2008 until it closed in November 2010. Her daughter, who was one-year old in 2008, attended ECCC during that time. Ms. Sallet never had concerns regarding her daughter's care while at ECCC. Ms. Sallet never saw an employee, including Ms. Vinson, give any medication to any child without proper authorization; never heard Ms. Vinson discuss improperly medicating children with Benadryl or Ex-Lax; and noted that giving a child Ex-Lax was counter-productive since the staff is responsible for changing a child that soiled his or her clothes. Irma Hall is a 23-year retired Alachua County School Board employee, who was a Head Start teacher for the school district. She was a volunteer pre-kindergarten (VPK) teacher at ECCC in 2010. Ms. Hall was never asked by Ms. Vinson to give a child medication, nor did she hear of anyone else being asked to do so. Tameka Williams worked at ECCC from June 2010 until the fall of 2010. She was never asked, nor did Ms. Williams hear Ms. Vinson ask anyone else, to improperly medicate any child at ECCC. Ms. Williams never saw any ECCC employee improperly administer any medication to any child at ECCC. Ms. Elise Stewart was employed at ECCC at various times. However, she was not employed at ECCC in the spring of 2010. During the times she was employed there, she never witnessed any employee of ECCC, including Ms. Vinson, give any child Benadryl or any other medication without authorization from the child's parents. Joyce Vinson described the procedure used at ECCC to administer medication to children. The center has medication forms which must be signed by the parent before medication will be administered to any child. Ms. Vinson denied that she ever asked an employee to go to the store to purchase medication; denied ever giving any child any medication without having written parental authorization, including Ex-Lax or Benadryl; and denied calling Ms. Hale every Friday in May 2010 requesting that she pick up JoP because he soiled his clothes. Improper Discipline of a Child The Second Amended Administrative Complaint charged Respondent with the following: On or about May 2010, the Respondent's owner and director, Joyce Vinson, took a disabled four-year-old child, J.P., outside, and in front of other children in care, removed all of his clothing, and hosed him down after he defecated in his pants. J.P. is not toilet trained due to his disability. * * * During the period May through June 2010, the Respondent's owner and director, Joyce Vinson, directed staff not to change J. P. when he defecated in his pull-ups, and repeatedly shut J. P. alone in a bathroom for extended periods of time. This allegation was based primarily on the testimony of Ms. Holmes, who asserts that in May 2010, Ms. Vinson instructed Ms. Holmes to move the children from the playground around the side of the building so they could not see; then Ms. Vinson and Vanessa Latson took JoP outside to the playground, removed his clothes and washed him off with a garden hose after JoP soiled his clothes. Ms. Holmes claims that she and Ms. Sallet witnessed this incident. Ms. Sallet denies ever seeing Ms. Vinson or any other ECCC employee hose down any child who had soiled his clothes. Ms. Sallet further denies ever observing a child disciplined, punished, or shut in a bathroom for soiling his or her clothes. Ms. Sallet described the process used at ECCC by her and other employees for cleaning up children who had soiled their clothes. This process involved using a basin in the bathroom, putting on sanitary gloves, and using wipes as one would use cleaning a baby. The other ECCC employee and volunteer who testified, Ms. Hall and Ms. Williams, also deny ever observing any child being hosed down, or otherwise purposefully embarrassed or humiliated for soiling his or her clothes, at ECCC. Finally, Ms. Vinson denied hosing JoP down to clean him up after he soiled his clothing; denied shutting JoP in the bathroom, or instructing any employee not to change him, or any other child, if he had soiled his clothes. Ms. Hale, JoP's mother, provided pull-ups to ECCC for her son. She typically picked up JoP around 5:00 in the afternoon. On several occasions, he had dried feces on him. In other instances, his pull-up was soaking wet and the diaper would be "full." Tameka Williams was employed by ECCC from June 2010 until sometime in the fall of 2010. When older children soiled their clothes, she would be sent to find clothes. If extra clothes had not been sent from home, ECCC had extra clothes available. Ms. Williams would often be the person who changed the clothing of the children who had soiled their clothes. First, she would clean them with a rag and body soap, wipe them, and put clean clothes on them. She would then put the soiled clothes in a bag, seal it, and let the parents know there were soiled clothes in the bag. Sometimes the clothes needed to be rinsed. Ms. Williams would rinse the soiled clothes, and hang them up. If they were not dry, she would put them in a plastic bag, tie it up, and send it home to the parents. She never witnessed any children being disciplined, with a hose, locked in a bathroom, or by any other method, for soiling their clothes. This was the same procedure described by Elise Stewart, who was employed by ECCC for six years off-and-on. When a child soiled his clothes, she would take the child to the bathroom, clean him or her, rinse the soiled clothes and place them in a plastic bag to go home to the parents. Out of Ratio/Improper Supervision The Second Amended Administrative Complaint charged Respondent with the following: On September 1, 2010 (5th violation), the Department's licensing counselor observed 18 children, including infants, on the playground being supervised by only one teacher and one volunteer; other staff were inside the facility. On August 10, 2010 (4th violation), the Department's licensing counselor observed 8 infants being supervised by only one teacher. During the period of March through June 2010 (3rd violation), the Respondent's staff repeatedly left the infant room unsupervised after the infants went to sleep, so that staff could supervise children or perform tasks in other parts of the facility. On March 24, 2010 (2nd violation), the Department's licensing counselor observed only two teachers supervising a nature walk with four infants and seven two year olds. The Respondent was previously cited and provided technical assistance for this type of violation on February 9, 2009 (twelve children including infants out in the playground with only two staff members). * * * From March through June 2010, the Respondent's owner and director, Joyce Vinson, routinely directed employees to mix age groups in the facility, on the playground and on trips; and to supervise more children than allowed by statute and rule. On March 24, 2010, Ms. Cruz-Gil went to ECCC to investigate a complaint received by phone made by staff of another facility regarding a nature walk that took place on March 12, 2010. After interviewing the staff person who reported this incident, and ECCC staff, Ms. Cruz-Gil determined that the group of children on the nature walk was comprised of a mixed group of three and four-year-olds on the field trip with four infants. Ms. Cruz-Gil determined that ECCC was out of ratio of required staff to children. The testimony regarding the actual number and composition of children on this field trip was confusing and unclear. But, in any event, she did not personally see the composition of staff to children on the field trip, and the field trip did not involve seven two-year olds, or take place on March 24, 2010, as charged. The allegation that during March through June 2010, Respondent's staff repeatedly left the infant room unsupervised when the infants were asleep, so that staff could supervise other children or perform other tasks, was based largely on allegations from Ms. Holmes and Ms. Rossman. According to Ms. Holmes, she was instructed by Ms. Vinson, on a daily basis, to leave the children she was supervising to clean another part of the facility, or to leave the infants alone in their cribs and supervise other children. According to Ms. Rossman, Ms. Vinson instructed her to leave the infants unattended once they were asleep, and when a baby was not asleep, to take the baby outside to the playground.3/ In the three years that Ms. Sallet worked at ECCC, she was never instructed or told that she could leave sleeping children unattended, and never heard Ms. Vinson tell any other employees to do so. According to Ms. Sallet, when ECCC employees took breaks, even to go to the bathroom, they were relieved by another employee. According to Ms. Sallet, ECCC employed a "floater," who would float from room to room to offer minimal relief for bathroom breaks and the like. Ms. Williams was not be assigned to a particular room, but would float from room to room as necessary. Ms. Williams never observed infants unsupervised, and described Ms. Vinson as being very strict about that. Ms. Hall, while volunteering at ECCC, never saw children left unattended and thought that ECCC was overstaffed. Ms. Vinson denies ever instructing any staff member to leave children unattended. Rather, she instructs them to remain with the children they supervise at all times. Ms. Vinson denies instructing staff to leave children in one classroom so that they can perform other facility business. On August 10, 2010, Ms. Cruz-Gil went to ECCC and observed eight infants in the infant room with only one staff member present. Ms. Vinson, however, maintains that on that day, Department inspectors came to the facility with law enforcement. She was with the one-year-old class, a staff member, Marisol, was with the infants, and Ms. Frewoini was with the two-year- olds. Ms. Vinson opened to the door and was informed that she had to deal with certain allegations immediately or she would be shut down. She instructed Marisol to watch the one-year-old class while she dealt with the inspectors and law enforcement. She did not have a floater working that day. Consequently, Marisol ended up watching a combination of infants and one-year- olds. At that point, Ms. Cruz-Gil observed eight children in the infants' room with one staff person, and cited this as a ratio violation. On September 1, 2010, Ms. Cruz-Gil went to ECCC to hand deliver a disqualifying letter to Ms. Vinson regarding an employee of ECCC. When she arrived, she observed 18 children on the playground, including infants, with only one staff member and one volunteer being present. According to Ms. Cruz-Gil, volunteers cannot be counted when calculating the staff-to-child ratio. Ms. Vinson denies that there were 18 children on the playground. Ms. Vinson was away from the center and received a call from staff that Ms. Cruz-Gil was there stating that the center was out of ratio. Ms. Vinson then returned to the center According to Ms. Vinson, the sign-in sheet for that day reflects that only 15 children were present and three ECCC staff present. As with most encounters between Ms. Vinson and Ms. Cruz-Gil, each describes the other as "screaming" at the other, not cooperative, and confrontational. The professional relationship between Ms. Vinson and Ms. Cruz-Gil is poisoned. In light of this history between them, it would be ill-advised for Ms. Cruz-Gil to be involved in any further compliance issues between the Department and Ms. Vinson. The final allegation under this category is that Ms. Vinson routinely directed employees to mix age groups in the facility, on the playground, and on field trips. Again, these allegations are primarily based on representations made by Ms. Holmes and Ms. Rossman. Ms. Holmes testified that she took children in the van "half the time" she was there (later "clarifying" this to "it was like kind of often"), away from the center for the purpose of maintaining proper ratio; that the van is a 15 passenger and that we "never had the kids in seat belts or car seats." She further testified that Ms. Vinson directed her to mix infants and toddlers "maybe two to three times a week;" and that Ms. Vinson would yell at employees to hurry up, that a DCF inspector might come by and that they already had a case against her. Ms. Rossman testified that three or four times, she and Vanessa would take children in the large stroller to the park. The stroller held six children and the older children would walk. It is not clear from this allegation, however, how old the children were who were in the stroller. Ms. Sallet described going on nature walks using the stroller, but that proper ratio was maintained during those walks. According to Ms. Sallet, the only instance in which Ms. Vinson directed staff to mix age groups is when Early Learning Coalition came to ECCC for some kind of activity in which all of the children participated. At those times, everyone would all gather in the common area, teachers as well and students. Ms. Williams described the nature walks as walk around the property on a little path, with six kids in the "bye-bye buggy." Ms. Williams never heard Ms. Vinson instruct employees to mix different age groups of children together so that ratios were maintained. Ms. Stewart, who worked there for six years, described Ms. Vinson as "adamant" about maintaining ratio. Ms. Vinson denies ever instructing any ECCC staff member to take mixed age groups of children away from ECCC to manipulate staff to child ratio. Personnel Violations The Second Amended Administrative Complaint charged Respondent with the following: During June and/or July 2010 the Respondent paid an 11-year-old-girl child, T.E., (who also attended the facility with her siblings) $10 per week for two or three weeks to watch the infants in the infant room by herself. . . . Respondent's owner and director, Joyce Vinson, has repeatedly allowed her fiancé, Kevin Wright, who has a disqualifying offense and has not been subjected to background screening, to transport children to and from the facility with no other child care personnel present. . . . The facility's director, Joyce Vinson, hired V.L., even though Vinson knew that V.L. was not eligible to work in a child care facility because of her criminal record for child abuse that occurred at another child care facility. . . . Respondent's owner and director, Joyce Vinson, knowingly falsified training records for employees. The failure to complete the training requirements is a continuing Class III violation with regard to each affected employee. T.E. is an 11-year-old female child who attended ECCC in the summer of 2010. T.E. testified that while she attended ECCC, she helped watch the babies some times. T.E.'s testimony regarding whether she was ever alone in the room with the babies without an adult was inconsistent. On one occasion, Ms. Vinson gave her $10, which T.E. assumed was payment for watching the babies. Cassie Tillman is T.E.'s mother and the daughter of Ms. Rossman. All five of her children attended ECCC for a period of months in 2010. She recalled that her daughter received $10 on two occasions, and that her daughter told her it was for watching the babies. Ms. Stewart, who worked at ECCC for six years, has seen Ms. Vinson give children money or other gifts for their birthdays. Ms. Vinson gave Ms. Stewart's grandchildren $5 for their birthdays. Ms. Vinson confirmed that she gave $10 to T.E. for her birthday in the summer of 2010, but denies that it was for watching babies. Kevin Wright is the fiancé of Ms. Vinson and has known her since 2006. He holds a degree from Bethune Cookman University and recently became a contract vendor for the School Board of Alachua County to be a substitute teacher. In 1995, Mr. Wright pled nolo contendere to the charge of possession of cocaine, a third-degree felony. Adjudication of guilt was withheld and Mr. Wright was placed on probation for six months, and was required to participate in the Life Skills Program at the Alachua County Adult Detention Center and to seek gainful employment. On the date of the Duval incident, a parent had driven a child to Duval Elementary to see the play. Mr. Wright rode with the parent. This parent was not properly dressed and requested Mr. Wright to escort the child from her car into the school. He did so. He was not on the van. This is supported by Ms. Sallet's testimony regarding who was on the van the day of the incident. Similarly, Mr. Wright has escorted ECCC children from the van into the public library. Mr. Wright denies that Ms. Vinson has ever asked him to transport children who attend ECCC and that he has never done so. Ms. Vinson denies that she ever asked him to do so.4/ Ms. Vinson hired Vanessa Latson when the daycare center where Ms. Latson worked was closing. Ms. Vinson inquired as to whether or not they would rehire Ms. Latson and was told that they would. Ms. Latson had been subject to background screening prior to her employment at the other daycare center. At the time Ms. Latson came to work for Ms. Vinson, the background screening was required every five years, and Ms. Latson had been screened within that time. However, the requirements have changed and now every new hire must be rescreened. Ms. Vinson became aware that Ms. Latson had a criminal record in her past. Ms. Vinson then inquired about this and, when she learned that this was the case, she fired Ms. Latson. On September 1, 2010, Ms. Cruz-Gil went to ECCC with the letter regarding Ms. Latson's disqualifying offense. However, by that time, Ms. Vinson had learned of it and already fired Ms. Latson. In 2007, Ms. Latson entered a plea of nolo contendere to the offense of cruelty toward a child; abuse without great harm, a third-degree felony. Adjudication of guilt was withheld, and she was placed on two-year's probation. There is no credible evidence that establishes that Ms. Vinson knew about Ms. Latson's criminal record prior to hiring her. The final allegation regarding personnel violations is that Ms. Vinson knowingly falsified training records for employees. This allegation was based primarily on Ms. Holmes's representations. Ms. Holmes alleged that she observed Ms. Vinson take her (Ms. Holmes') training certificates and cut- and-paste the names of other employees; that she observed Ms. Vinson make copies of CPR cards for other individuals who did not attend the CPR class and asked Ms. Holmes to laminate them; and that Ms. Vinson changed an employee's employment start date on-line so there would be more time to complete training. Additionally, Ms. Rossman, in confusing and unclear testimony, asserted that Ms. Vinson asked Ms. Holmes to take a test for her (Ms. Rossman). It is unclear why Ms. Vinson would ask Ms. Holmes to take the test for Ms. Rossman when Ms. Rossman was able to take the test. Ms. Vinson denies falsifying employees' records. Ms. Vinson explained that the person takes the class on-line, then goes to a test center to take the test. Ms. Vinson can then check on-line to see if a person has successfully passed the course, and she can then print the certificate. Regarding the allegation that Ms. Vinson told Ms. Holmes to take a test for Ms. Rossman, Ms. Vinson asserts that it was Ms. Rossman who stated that she (Ms. Rossman) was going to ask Ms. Holmes to take the test for her. According to Ms. Vinson, both Ms. Holmes and Ms. Rossman were supposed to take a test on a Saturday in early June, but did not show up to take the test. When Ms. Rossman came back to work the following Monday, Ms. Vinson informed her she could not work because she had not taken the test. Ms. Vinson asserts that at that point, Ms. Rossman threatened to close her down. Ms. Holmes did not return to work. Several witnesses who had been employees of ECCC prior to its closure denied ever seeing Ms. Vinson do this. As with many of the other allegations made by Ms. Holmes and Ms. Rossman, in order to find these the allegations are true, Ms. Vinson would have done all of these things in front of only these two employees, but never in front of any other employee, regardless of how long they worked for Ms. Vinson.5/ Pamela Buckham is the Regional Safety Program Manager for the Department, and is in charge of child care licensing for the northeast region. Ms. Buckham signed the Second Amended Administrative Complaint. It was primarily Ms. Buckham's decision to seek revocation of ECCC's child care license. Ms. Buckham decided to seek revocation rather than impose lesser sanctions because she believed that the children who attend ECCC are in danger. Ms. Buckham based this conclusion on the numerous class I violations alleged that involved child safety, the seriousness of some of the violations, and that the other violations were repeat violations. Further, Ms. Buckham described dealings with ECCC as being met with "a lack of cooperation."
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 placing the license on probation for the length of time the facility has been closed due to the Emergency Suspension Order; imposing fines in the amount of $740; requiring Respondent to attend further training regarding the requirements of section 402.305(4) and Florida Administrative Code Rule 65C-20.001(4); and requiring successful completion of such training prior to reopening the child care facility. DONE AND ENTERED this 25th day of July, 2011, in Tallahassee, Leon County, Florida. S 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 25th day of July, 2011.
The Issue The issue is whether EDU Express, LLC, d/b/a The Little Engine Academy (“EDU Express”), violated Florida Administrative Code Rule 65C-22.001(11)(b)1/ by failing to report a suspected incident of child abuse.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: At all times relevant to the instant case, EDU Express was a Florida-licensed childcare facility owned by Joy Vaeth with 100 to 120 children under its care. The Department is the state agency responsible for licensing and regulating childcare facilities in Florida. See §§ 402.305-.311, Fla. Stat. (2017).3/ In order to fulfill its regulatory duty, the Department inspects every childcare facility three times a year. The Department will conduct an additional inspection if it receives a complaint pertaining to a particular childcare facility. The Department administers rule 65C-22.001, and subsection (11) of the rule subjects childcare facilities to discipline for failing “to perform the duties of a mandatory reporter pursuant to Section 39.201.” Such failure “constitutes a violation of the standards in Section 402.301-.319, F.S.” Section 39.201(1)(a), Florida Statutes, mandates that “[a]ny person who knows, or has reasonable cause to suspect, that a child is abused . . . shall report such knowledge or suspicion to the [Department] in the manner prescribed in subsection (2).”4/ On February 24, 2017, an employee of EDU Express inadvertently injured a child’s elbow while ending a scuffle between that child and another child. Because EDU Express maintained cameras in its facility, the incident was captured on video. After watching a video of the incident, Ms. Vaeth concluded that she was not required to report the incident to the pertinent authorities: And I – it was an accident . . . The teacher had been changing a child and off in the distance was another child hitting a child with a drumstick. And, so, the teacher picked up the child she was changing to stop that, because they’re one and – or one and a half. And went over and holding one – the child she had been changing, just lifted that child up and away from the child she was hitting so that there was no injury. And in that process the child’s arm – the elbow got this injury called Nursemaid’s elbow.[5/] So I just – in my mind we’re all – you know, talking about the – you know, what happened, and I just didn’t think of it as abuse that I needed to report to the hotline. And, even as part of my Exhibit One, this is a flyer at one point, you know, that DCF put out about signs to look for. And, again, when I read this I still don’t read this and go, oh, yeah, I should have reported that to the hotline because it was abuse. I just – I didn’t believe it was abuse. My teacher did not purposely set out to injure that child. And in the process of trying to prohibit another child from being injured she pulled the child up by one arm and that arm was injured. So – and, so, anyway, that’s just – I just didn’t connect the dots. * * * And – but I called the parents and I talked to the dad. It’s not like I tried to hide it from him. I called him and I told him what had happened. I talked to the mom the next day. Of course, they were upset. Understandably they were upset. But, again, I wasn’t – I didn’t realize that the – that I had to call the abuse and neglect hotline on situations like this. I know now. And then, as far as the parent asking me to report it, I –- I do not believe she did. And if she did, I didn’t understand it that way. And I – as part of my Exhibit Two I –- we talked on the phone, but she also texted me. And those are the only texts I have. But never once in the text messaging –- I was going back and forth a little bit with her to check on G.H. to see how she was and she never suggested that – that I understood, to call the hotline as suspected abuse. While Ms. Vaeth initially concluded that she was not required to report the incident to the Department, the child’s mother concluded otherwise and was under the impression that Ms. Vaeth was going to report the incident. Ms. Vaeth was not under the impression that the mother asked her to report the incident. The child remained under EDU Express’s care for another six months. Upon learning that Ms. Vaeth never reported the incident, the child’s mother filed a complaint with the Department on August 15, 2017. The Department then conducted an inspection of EDU Express and evaluated whether the incident amounted to an instance of abuse. Patricia Medico was the family services counselor who had been responsible for conducting the Department’s inspections of EDU Express since it opened in 2013. Ms. Medico conducted the inspection resulting from the mother’s complaint. During the course of that inspection, Ms. Medico viewed a video of the incident and described what she saw as follows: She was by herself in the classroom at the time. She had a baby in one arm. Whether the baby was upset or she had just changed it -- she had a baby in her arm and, so, she saw a situation over there. Two children fighting over – I think it was a toy drum. And reached over to move the child so, you know, it may have appeared that she was pulling the child. But as we looked at the video over and over again, that’s not what it was. She was just – she was pulling the child to safety is what she was doing and, you know, wasn’t aware that anything had happened to the child. Ms. Vaeth did remove that person from her – her position.[6/] While there is no evidence that the EDU employee intended to cause injury by grabbing the child’s arm and removing the child from the scuffle, that employee did intend to remove the child from the scuffle by grabbing the child’s arm. The child suffered some degree of harm due to the EDU employee grabbing his or her arm. There is no sufficiently detailed evidence as to whether the child’s physical, mental, or emotional health was significantly impaired by the harm suffered by the child. For example, there was no evidence regarding the severity of the child’s injury or whether she experienced any pain. Also, there is no detailed evidence about the amount of treatment that was necessary to treat the child’s condition.7/ The incident on February 24, 2017, did not result from any ambivalence on Ms. Vaeth’s part or any disregard for the welfare of the children under her care. With the exception of an earlier incident which led to the Department charging EDU Express with multiple violations, Ms. Medico was never under the impression that the children at EDU Express were in an unsafe environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families dismiss the Administrative Complaint at issue in this proceeding. DONE AND ENTERED this 11th day of April, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 11th day of April, 2018.
The Issue Whether the Department of Children and Family Services (Department) properly denied the renewal of Clay and Diana Merritt's family foster home license, No. 019917.
Findings Of Fact The Department of Children and Family Services is the administrative agency responsible for the licensing of foster homes under the laws of the State of Florida. The Department is responsible for investigating allegations of child abuse against citizens of the State of Florida. The Respondents, Clay Merritt and Diana Merritt were the holders of a foster care home license which was issued by the Department on January 27, 1997. That license was renewed in 1998 and provisionally renewed in 1999. During the period of time that the Respondents were a legally licensed foster home, three different children resided in their home, Amy C., Bo T. and Joe H. On January 27, 1999, an argument ensued between Respondents and Amy C. over Amy C.'s returning late from a date. During that argument, Amy stated that she would report the Merritts for sexual abuse if they did not relax their restrictions upon her. When the Respondents refused to relax their restrictions, Amy C. requested that she be removed from the home. The Department was called and Amy C. was removed from the foster home, and placed in a facility for run-a-way children in Gainesville, Florida. Very soon thereafter, Amy C. alleged that she had been sexually abused by the Respondent, Clay Merritt, on three occasions, all of which included sexual intercourse. The Respondent, Clay Merritt, denies the allegations in their entirety. Amy C. had been a prior victim of sexual abuse by her father, her brother, and her half brother. Amy C.'s father and her brother were convicted of sexually abusing her, and her father is still incarcerated. Amy C. testified at her father's criminal trial. Because of her prior abuse, Amy C. suffers from a number of mental disorders, to include post-traumatic stress syndrome, dysthymia, and attachment disorder. The child further evidences self-destructive behavior and vindictive behaviors against others. Susan Pierce counseled Amy C. for approximately nine months from early 1998 until the end of January of 1999. During that period of time, she developed a close therapeutic relationship with the child, and believed that the child was comfortable with her as a therapist. During that nine-month time period, the child never made any allegations of sexual abuse against the Respondent, Clay Merritt, although she discussed other instances of abuse with the counselor unrelated to the Respondents. Ms. Pierce felt Amy C. would have revealed abuse by Clay Merritt had such abuse occurred. The child lied on numerous occasions to her counselor and the Respondents. The child became increasingly interested in psychopathic murder, which was indicative of the disorders that were suffered by the child in Pierce's opinion. The child stated that she had been sexually abused by Clay Merritt in July, August, and September of 1997 and had a miscarriage in November or December of 1997. However, her diaries indicate that she had menstrual periods on October 25th and November 14th, 1997, thus precluding the possibility of pregnancy. The child further testified that the miscarriage was one of the most painful things she had ever encountered. The child stated under oath that she had not reported the miscarriage because "she did not want to hurt Diana's feelings." She stated to investigators that she did not report the abuse because she did not want to be taken out of the foster home. Throughout the period of time that Amy C. resided with the Respondents, she was a discipline problem. In June of 1998, Respondent, Diana Merritt, discovered Amy C. at home one afternoon with a boy with whom she had just completed having sexual intercourse. Diana Merritt took Amy C. to medical professionals for pregnancy testing and tests for sexually transmitted diseases. Diana Merritt counseled with Amy C. about the dangers of her conduct, and the Merritts maintained a closer watch upon the child. Amy C. refused to comply with the requests of the Respondents to restrict her sexual activities which led to numerous disagreements and arguments with Amy C. These arguments culminated in the argument of January 27, 1999, which resulted in Amy C.'s removal from the home. Amy C. was asked to take a voice stress test by the Sheriff's department, but she declined. The statements of Amy C. are contradictory with regard to specific facts. She gave two different dates for her alleged miscarriage: June and November 1997. She described severe physical trauma associated with the alleged miscarriage, but did not seek or receive medical assistance. She was subsequently examined and tested for sexually transmitted diseases as the result of an unrelated, consensual sexual relationship, and no findings were made indicating a prior, terminated pregnancy. Amy C.'s diaries are vague and unrevealing, except for the reporting the commencement of a menstrual period in October and in November. This is inconsistent with a reported miscarriage in December 1997. Because of the Amy C.'s prior abuse, resort to physical examination, or her description of details about the encounter is not helpful in resolving the her credibility. The allegations by Amy C. of sexual abuse by Clay Merritt are unsupported by any tangible evidence. Amy C.'s reputation for truth and veracity is not good. Her allegations are not supported by her diaries. Her allegations were made almost one and one-half years after the alleged events, and immediately after a fight with the Merritts. The Department's investigation revealed that the Merritts had spanked one of the other children on occasion in contravention of a Department policy banning corporal punishment. The Merritts did not deny this allegation; however, there was no evidence that these spankings were abusive. The spanking was a violation of agency policy; however, testimony was received that this type of conduct was generally not a basis for revoking a license by itself. The Respondent, Diana Merritt, is a licensed practical nurse who is employed by the Putnam County health Department. She has no prior criminal record, no prior child abuse record, nor has she had any legal difficulties in her life. The Respondent, Clay Merritt, is employed as a paramedic and firefighter. He is certified as a paramedic. He has never been arrested nor had any child abuse allegations filed against him in his entire life. The guardian ad litem for Bo T. testified that Bo T. was suffering as the result of his removal from the Respondents' home. Bo T. was the child who was spanked. His guardian ad litem favored placing the child back in the Merritt's home and care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order renewing the foster home license No. 19917 of the Respondents. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2000. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Richard J. D'Amico, Esquire 619 North Grandview Avenue Daytona Beach, Florida 32118 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether Petitioner's application for licensure as a child care facility should be granted.
Findings Of Fact Petitioner, God's Little Blessings, applied for licensure as a child care facility on March 23, 2015. The application was completed and submitted by Leslie Fudge, the owner and proposed operator of the facility. The proposed director was Adrienne Wimas (spelling uncertain). After review of the application, the Department denied Petitioner a child care facility license on May 1, 2015. The sole reason for the denial was contained in the Department's denial letter dated May 1, 2015. The letter stated: This letter will serve to advise you that your Application . . . is hereby denied based on review of your background screening, including the Florida Central Abuse Hotline Record Search. No other reason for denial was stated in the Department's letter. While not stating the specific facts regarding the background screening and abuse record search, the evidence demonstrated that the denial was based on one confirmed report of neglect (Abuse Report 2003-031849-01) against Ms. Fudge for inadequate supervision of resident R.H., and medical neglect of residents R.G. and J.D. Both incidents occurred at about the same time on or about March 5, 2003, while Ms. Fudge was employed at Tallahassee Development Center (Center). The Center provided residential and direct care to developmentally disabled residents at its facility. At the time, Ms. Fudge was employed as care staff responsible for providing direct one-to-one care to R.H. She was not assigned to provide care to R.G. Other than Ms. Fudge, no witness with personal knowledge of these incidents testified at the hearing. Consequently, many of the statements contained in the 2003 abuse report remain hearsay which was not corroborated by any competent substantial evidence. Additionally, the age of the report, confusing allegations and lack of factual basis for its findings of inadequate supervision or medical neglect cause the abuse report to be unreliable and untrustworthy as evidence. As such, except as found below, the report by itself cannot form a basis for denial of Petitioner's application. Ms. Fudge was the only person who testified at the hearing with personal knowledge about the events of March 5, 2003. She testified, and such testimony is accepted, that on or around March 5, 2003, she was not a shift supervisor, but was assigned as a direct care aide with "one-to-one" supervision of R.H. The testimonial evidence from Ms. Fudge and other employees of the Center during 2003 demonstrated that Tallahassee Developmental Center employees were trained that one-to-one supervision meant that "the person had always to be watched" and "you could never leave [the person] alone." There was no credible evidence that the person could not be alone in the restroom, that the staff assigned to watch the person had to be within arm's length of the resident, or that such observation was not varied according to the behavior plan for an individual resident. Further, the testimonial evidence showed that staff and Ms. Fudge knew R.H. would run away usually to hide in a particular office, but occasionally with the police being called if R.H. were to leave the building and could not be found. The evidence did not demonstrate that R.H. behaviorally was aggressive or dangerous to others, but only that he would run away and hide. Finally, the testimonial evidence showed that the facility was in the process of trying to wean R.H. off of one-to-one supervision by implementing a plan of moving away from him and permitting him times of less supervision. On March 5, 2003, the testimonial evidence demonstrated that Ms. Fudge, R.H., and other residents were gathered in the living room of the house where they lived. The phone in the adjoining office rang and Ms. Fudge answered it. While on the phone she could observe R.H. through the window between the rooms. At some point, R.H. was sent to go to the restroom. It was unclear who sent him. After finishing in the restroom, he did not return to the living room, but "left out of the bathroom" to another office, locked the door and hid behind the desk. Ms. Fudge could see him in the office and called a nurse to bring the key so that the office could be unlocked. At the time, R.H. was not in danger and there was no evidence that demonstrated he was in danger. There was some evidence that another staff person mistakenly may have believed that R.H. had left the building. However, the better evidence showed that Ms. Fudge knew where R.H. was, could see R.H. in the room in which he was locked, and that he was not in danger at the time. Given R.H.'s behavior plan, none of these facts establish neglect by Ms. Fudge in the supervision of R.H. There was no credible, non-hearsay evidence presented at hearing as to the abuse report's allegations regarding resident R.G. or J.D. As such, the Department's evidence consisted only of an old unreliable abuse report consisting of uncorroborated hearsay about an incident involving R.G. and perhaps J.D. and the testimony of the investigator who had no personal knowledge of the facts regarding the incident or the supervisory policies of the Center. Given these facts, Respondent has failed to demonstrate that Ms. Fudge neglected, either in supervision or medically, residents who were in her care. In fact, the evidence showed that Petitioner has been caring for and/or supervising people for many years and has the character and capacity to continue to do so. Since the unproven abuse report was the only basis on which the Department based its decision to deny Petitioner's application, there was nothing in the record to support its determination that Petitioner lacked moral character or the ability to safely operate a child care facility. Therefore, Petitioner's application for such licensure should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner's application for licensure as a child care facility is granted. DONE AND ENTERED this 2nd day of November, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 November, 2015. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Building 2, Suite 204 Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 (eServed) Leslie Fudge God's Little Blessings Apartment F-8 216 Dixie Drive Tallahassee, Florida 32304 Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308-5333 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families 1317 Winewood Boulevard, Building 2, Room 204 Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families 1317 Winewood Boulevard, Building 1, Room 202 Tallahassee, Florida 32399-0700 (eServed)
