The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should revoke or suspend the foster care license of Larry and Kathleen Abbott.
Findings Of Fact Larry and Kathleen Abbott have been licensed foster parents for a number of years. They were licensed in 1983 in HRS District 6 (Hillsborough County and Manatee County) and in 1986 in HRS District 5 (Pinellas County). Despite some criticism by HRS staff, their license was renewed annually since 1986. Their last license expired and was required to be renewed on October 25, 1991, after the commencement of this proceeding. By their Agreement to Provide Foster Care for Dependent Children, the Abbotts agreed to "hold confidential all information about the child and his family" and to "discuss such information only with representatives of the Department or with appropriate specialists at the request of the Department." On or about January 28, 1990, HRS initiated proceedings to place a female baby named Andrea, who was born on June 28, 1989, in shelter care due to her failure to thrive and her mother's lack of parenting skills. On or about February 23, 1990, the child was placed in foster care in accordance with a Performance Agreement. The goal under the Performance Agreement was to return the child to the care of her mother by August 31, 1990. (This goal was later extended to February 23, 1991.) However, meanwhile, due to the mother's lack of parenting skills and multiple allegations of abuse, the foster parents agreed not only to provide the child with adequate food, clothing, shelter, supervision and affection, but also to report to HRS any concerns regarding visitation with the mother. Since the Abbotts were not Andrea's initial foster parents, they did not sign the Performance Agreement. However, although they never signed the agreement, when they became Andrea's foster parents on or about April 30, 1990, they also agreed to the terms of the Performance Agreement. When the Abbotts got Andrea, she had a medical problem called "G.U. Reflux." HRS wanted the Abbotts to have this condition appropriately followed by a physician and wanted it documented by a physician that the problem had cleared. An appointment scheduled for this purpose had to be cancelled for some reason and, while discussing rescheduling the appointment with the physician's medical staff, Mrs. Abbott reported her observation that the problem already had cleared. Based on the report from Mrs. Abbott, the appointment was not rescheduled, and the physician closed the case based on Mrs. Abbott's report. HRS apparently feels that the Abbotts were less than impartial in their evaluation of Andrea's medical condition. HRS witnesses asserted that the Abbotts decided early on that the child's symptoms that resulted in the G.U. Reflux diagnosis actually were caused by the natural mother's physical abuse and neglect of the child. The HRS witnesses contended that the Abbotts' beliefs warped their judgment and impelled them, inappropriately, to cancel the doctor appointment based on their beliefs, and in order to prove their beliefs to be correct. But the evidence in this case did not prove HRS' contentions. From the outset of the Abbotts' foster care for Andrea, the Abbotts were very interested in knowing all of the background about Andrea, including the allegations against her natural mother. The natural mother was allowed to keep her two other children. The Abbotts were interested to know how the mother was caring for the other two children, in part as it might be relevant to the ultimate disposition of Andrea's case but also in part for the sake of the other children as well. Mrs. Abbott seemed to question whether the HRS investigations on the other children, which were closed as "unfounded," were properly conducted. But there is no evidence that the Abbotts did or said anything in these earlier time periods in their foster care for Andrea that HRS viewed to be improper. At some point relatively early in the Abbotts' foster care of Andrea, Mrs. Abbott pointed out to her HRS foster care counselor that Andrea's name was similar to that of another child living in the home, and Mrs. Abbott wanted to know if it would be permissible to call Andrea by a nickname. The HRS counselor said that would be fine. Later, near the holidays in late 1990, Andrea's natural mother expressed concern to the HRS counselor that the Abbotts had been calling Andrea by the name Nicole and that she was not responding to Andrea any more. The HRS counselor spoke to the Abbotts and asked them to stop calling the child Nicole. She explained that, when she authorized the Abbotts to call Andrea by a nickname, she did not mean they could call her by a different proper name. The Abbotts, who now see the error of judgment that they made, immediately stopped calling the child Nicole. As the goal of reunification by February 23, 1991, approached, Mrs. Abbott began to question the propriety of going ahead according to schedule. HRS protective services had raised questions regarding the natural mother's readiness to take care of Andrea. The HRS counselor also had made statements to Mrs. Abbott which made her suspicious that the counselor's supervisor would not make the decision to reunify the family on the basis of the best interests of the child. (It was intimated that the supervisor might be more concerned with her unit's statistics.) At bottom, the Abbotts thought reunification should be postponed; HRS, especially through the counselor's supervisor, took the position that reunification should go forward as scheduled. The Abbotts also disapproved of the natural mother's male friend, who was cohabiting with her in her apartment. The HRS counselor told Mrs. Abbott that it was not permitted for the natural mother to have a male friend living with her in her apartment while she was receiving certain welfare benefits. She told Mrs. Abbott that the natural mother would be in trouble if the landlord knew. HRS asserted that Mrs. Abbott took it upon herself to tell the landlord, but there was no evidence upon which such a finding could be made.2/ One day, on or about January 11, 1991, the natural mother did not make a scheduled appointment for purposes of visitation with Andrea. Mrs. Abbott understood that the natural mother sometimes worked at the day care facility located at the apartment complex where the natural mother lived. This was the day care facility utilized by the natural mother for her other children. It was also proposed for Andrea after reunification. Mrs. Abbott identified herself to the day care director in terms of Andrea, the natural mother and the children at the day care. The natural mother was not there. No finding can be made as to the subject matter of the remainder of the conversation.3/ The day care director reported some of the conversation with Mrs. Abbott to the HRS protective services staff responsible for the children, who brought the matter of Mrs. Abbott's alleged "meddling" and "breach of confidentiality" to the attention of the HRS counselor and her supervisor. They reprimanded Mrs. Abbott, who became even more suspicious of HRS and its protective services staff. On or about April 5, 1991, Andrea was returned to the Abbotts after a scheduled weekend visitation with the natural mother.4/ Mrs. Abbott observed marked and unusual redness and swelling in the child's genital area and became concerned that the natural mother's male friend might be sexually abusing the child. Although she thought it was diaper rash, the HRS foster care counselor authorized Mrs. Abbott to have the child examined by a physician at the Bayfront Medical Center. The doctor's nurse agreed with Mrs. Abbott that the redness was too concentrated to be diaper rash, reinforcing Mrs. Abbott's beliefs. The doctor prescribed Desitin and sitzbaths, and had Mrs. Abbott call back for test results. The eventual diagnosis was that the child had a bacterial staph infection.5/ Despite the diagnosis, Mrs. Abbott continued to maintain strong feelings that the child was being physically abused. These suspicions were instigated in part by comments from the doctor that the symptoms could come from being touched by dirty hands, from Mrs. Abbott's understanding that the natural mother's male friend worked as manager of an auto service station, and from her having seen him with dirty hands as a result of his work.6/ Mrs. Abbott had several discussions with the HRS foster care counselor about her suspicions. The HRS counselor was unable to convince Mrs. Abbott to drop her suspicions in light of the absence of solid evidence of sexual abuse. Mrs. Abbott felt there were indications that Andrea was "severely traumatized" by visits with her natural mother. But HRS personnel perceived no evidence of this. At this point, HRS and the Abbotts essentially disagreed as to how Andrea's case should proceed. HRS thought that there was no basis on which to change the goal of reunification. Mrs. Abbott felt that reunification should be postponed and also suggested that it was HRS' responsibility to secure a guardian ad litem. HRS decided that a meeting should be held among all concerned to resolve the disagreement. The meeting was held on or about April 9, 1991.7/ From opening remarks made by the counselor's supervisor, Mrs. Abbott felt that the purpose of the meeting was not to discuss the issues to reach a solution but to present a united HRS front to press forward for reunification. Mrs. Abbott felt that, in that atmosphere, there was no point in her speaking against reunification, but she continued to maintain her negative feelings about it and resolved in her mind to continue to oppose reunification on other fronts. She asked the HRS counselor if it was permissible to contact the chairperson of the reunification committee directly and was told that there was nothing to prevent her from doing so. On or about April 11, 1991, the HRS counselor authorized Mrs. Abbott to have the child seen by a child protective team (CPT) physician. The CPT physician affirmed the previous diagnosis and prescribed an antibiotic. The Abbotts did not immediately fill the prescription. They told the HRS counselor that they did not have Medicaid authorization to have the prescription filled through Medicaid. The counselor thought the authorizations had been sent to the Abbots but promised to send or deliver to them another one. On one occasion, when the counselor was at the Abbott house, the counselor went to her car to get the necessary form, but discovered she did not have any with her. On another occasion, the counselor was to give Mrs. Abbott the authorization form at a meeting they were at, but they both forgot to take care of that item of business. Meanwhile, the Abbotts continued to use Desitin.8/ On or about April 19, 1991, after the redness and swelling seemed to the Abbotts to be going away, the natural mother had Andrea for another overnight visit. Still suspicious, Mrs. Abbott had asked the HRS counselor to check the child's genital area as soon as possible after the visit. When the Abbotts got the child back from the HRS counselor, Mrs. Abbott checked the child herself and was surprised and upset to see more redness and swelling. She immediately telephoned HRS and spoke with the counselor's supervisor. She was instructed to bring the child to the child protection center immediately. When the CPT physician learned that the Abbotts had not yet started the prescription from over a week earlier, she became upset and threatened to telephone the Florida abuse registry to report the Abbotts for medical neglect for failure to obtain and administer the prescription. The HRS supervisor intervened and dissuaded the physician from making the call by assuring her that the prescription would be obtained and administered immediately. The CPT physician's diagnosis was that, although sexual abuse could not be ruled out, the problem was more likely secondary to less than adequate diaper changing and persistence of the previous staph vaginitis. Mrs. Abbott did not accept the diagnosis but continued to suspect sexual abuse. She opposed further visitation with the natural mother so long as the male friend resided in the same apartment. Eventually, a reunification meeting was held. The Abbotts did not attend. It was decided to reunify the family. The Abbotts cooperated in making all necessary final arrangements to get Andrea ready. Reunification went forward on or about May 20, 1991. After reunification, Mrs. Abbott continued to show interest in Andrea. After taking a two-week vacation, Mrs. Abbott got permission from the HRS counselor to telephone once a week to see how Andrea was doing. Mrs. Abbott also asked to know the name and address of Andrea's private day care, but the counselor said she could not have that information. After five weeks, the counselor's supervisor had the counselor cut off any further contact with the Abbotts concerning Andrea. Mrs. Abbott said to let her know if HRS had to take Andrea back. She said that she and her husband had much invested in caring for Andrea and that they felt as if she were their own child. If HRS had to take Andrea back, the Abbotts wanted her back and would be interested in adoption. Later, the Abbotts asked for another assignment essentially to help take their minds off of Andrea. On two occasions, Mrs. Abbott criticized the care being provided by other foster parents and suggested that the foster children be transferred to the Abbotts. HRS viewed this as evidence that the Abbotts had become so attached to Andrea that they had lost their good judgment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order suspending the foster care license of Larry and Kathleen Abbott for 90 days. 9/ RECOMMENDED this 5th day of March, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 5th day of March, 1992.
The Issue Whether the Department of Children and Family Services (the "Department") had just cause to revoke the license of Petitioner to operate a family day care home.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: From April 15, 1987, through March 31, 2001, Marcia Edwards operated a registered family day care home at 15475 Chloe Circle, Fort Myers, Florida 33908. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care home involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home must comply with the limits on the number of children under care, as set forth in Subsection 402.302(7), Florida Statutes. Ms. Edwards had been reminded of the requirement for background screening of household members at least once, via letter dated February 12, 1993. Nonetheless, the Department received two complaints in December 1994, regarding the presence of an unidentified person in the home. One complaint noted that an "unidentified male houseguest was eating and drinking the children's food." The second complaint noted that Ms. Edwards was out of town and left the children in the care of her mother and "a guy named Wayne." On January 4, 1995, the Department sent Ms. Edwards a letter informing her of the complaints and reminding her that she could not leave children with persons who had not undergone background screening. The letter noted that neither Ms. Edwards' mother nor "Wayne" had undergone background screening. The adult male referenced in the complaints was Wayne Brueckman, who was residing in the Edwards home. On February 6, 1995, in compliance with the Department's letter, Ms. Edwards submitted the necessary information to initiate background screening on Mr. Brueckman, listed as a "Household Member" and "Sitter/Relief." Mr. Brueckman's background screening revealed no disqualifying information. Ms. Edwards was reminded of the statutory capacity limitations in person and in writing at least 11 times between September 1987 and June 1999. On at least five occasions, Ms. Edwards responded that she understood the capacity limitations. Nonetheless, Department employees personally observed violations of the capacity limitations on at least five separate occasions. By letter dated July 7, 1999, the Department gave Ms. Edwards an administrative warning that she would be subject to imposition of a fine if she continued to operate in violation of the statutory capacity limitations. On August 13, 1996, an abuse report was received by the Department that Wayne Brueckman sexually abused D.S., a three- year-old boy, in the Edwards home. The child had told his mother that Mr. Brueckman kissed his penis, put a "white thing" in his anus, and spanked him when he defecated in his pants. However, the child would not repeat his allegations to protective investigator Mae Cook, and an examining physician could find no physical evidence of sexual abuse. Mr. Brueckman denied the allegations. Ms. Edwards was interviewed by Ms. Cook concerning the August 13, 1996, complaint. Ms. Edwards denied any inappropriate activity and vouched for Mr. Brueckman as her friend of 20 years. Though she closed the file because she did not have sufficient evidence to confirm the allegations, Ms. Cook strongly suggested that children staying overnight not be allowed to sleep in Mr. Brueckman's room and that he not be left alone at any time with children, to avoid any repetition of such allegations. A repeated citation in the violation notices from this point forward was that Ms. Edwards would leave Mr. Brueckman alone with the children in her care for extended periods of time. Concerns regarding Mr. Brueckman were also raised during an investigation of another sexual abuse report received by the Department on November 18, 1996. This complaint involved Z.A., a three-year-old boy in care at the family day care home. The child told a story of some adult in the Edwards home rubbing his genitals, but his limited verbal skills made it unclear whether a man or woman did the touching. Wayne Brueckman and Marcia Edwards were both interviewed by the protective investigator and both denied any inappropriate activity. Again, there was no physical evidence to confirm the allegations. On February 5, 2001, the Department received an abuse report that W.W., a 19-month-old boy in care at the Edwards home, had bruises along his spine and arms, two large bumps on his head, and a patch of hair loss on the top of his head. Medical examinations by the Child Protection Team and the child's pediatrician determined the injuries were significant, inflicted and the result of physical abuse. The abuse report was called in by J.W., the divorced father of the child. W.W. lived with his father and his older sister in the home of J.W.'s mother. J.W.'s teenaged nephew also lived in the house. W.W. did not see his biological mother. J.W. worked as a chef, and left W.W. and his older sister at the Edwards home on evenings that he worked. The medical determination of the approximate time of injury indicated the injuries occurred either at the child's residence or the Edwards family day care home. When at his residence, W.W. was in his father's care. J.W. denied inflicting the injuries on his son, and discounted the possibility that anyone else living in his household might have done so. J.W. was certain that his son's injuries were inflicted at the Edwards home. W.W.'s older sister told investigators that "bad boys" at the Edwards home had inflicted the injuries on the boy. J.W. readily consented to the CAT Scan, eye examination, and clotting factor test recommended by the pediatrician. The father expressed concern about the supervision provided by the family day care home. He recalled several times in the past that when he came to pick up his children at night, he could look in the window of the Edwards home and see Mr. Brueckman sleeping. It required lengthy knocking and ringing of the doorbell to finally rouse Mr. Brueckman or anyone else in the home. Wayne Brueckman and Marcia Edwards were interviewed by the Protective Investigator. Both denied any inappropriate activity or failure to supervise. However, based upon the medical evidence, and multiple interviews including questioning of the children in attendance at the family day care home, the report was closed as verified. The Protective Investigator concluded that the child was injured by other children at the family day care home. The case determination found that Marcia Edwards and Wayne Brueckman inadequately supervised and neglected W.W. On February 22, 2001, while the W.W. case was being investigated, Ms. Edwards applied to renew her family day care home registration. Based upon the W.W. investigation, the Department issued a denial of registration on May 29, 2002. Ms. Edwards requested a formal administrative hearing to contest the denial of registration. The Department forwarded the matter to the Division of Administrative Hearings, where it was assigned DOAH Case No. 01-2840. A hearing was scheduled for September 19, 2001, in Fort Myers, Florida, before Judge Daniel S. Manry. Counsel for Ms. Edwards requested a continuance due to a scheduling conflict. Judge Manry granted the continuance and rescheduled the hearing for October 19, 2001. On October 12, 2001, the Department filed a motion to relinquish jurisdiction, accompanied by a settlement agreement between the parties. On October 15, 2001, Judge Manry entered an order closing the file in DOAH Case No. 01-2840. The settlement agreement required licensure of the family day care home, which would obligate the family day care home to comply with increased regulatory standards. One such standard prohibits the owner from working out of the home during the hours the family day care is operating. Rule 65C- 20.009(1)(a), Florida Administrative Code. In the settlement agreement, Ms. Edwards affirmatively recognized her on-going obligation to comply with all requirements of the Florida Statutes and Administrative Code applicable to family day care homes. The settlement agreement also provided that the Edwards home would receive a consultation by Child Care of Southwest Florida ("CCSWF"), a private, non-profit regional organization that, among many other services, provides training and technical assistance to home-based child care providers. This consultation would be at the Department's expense. CCSWF's consultant would assess the home's compliance with licensing standards and make suggestions as to implementation of best practices. The Department's experience has been that CCSWF's consultation, technical assistance, and training have proven successful in improving marginal child care providers. On December 17, 2001, Lisa Bledsoe, the infant/toddler coordinator for CCSWF, visited the Edwards home for the required consultation. Ms. Bledsoe rated the home based on the Family Day Care Rating Scale ("FDCRS"), an objective tool developed by the National Network for Child Care for the assessment of infant/toddler group care. The FDCRS consists of 32 items which assess the quality of center-based child care for children up to 30 months of age. This 32-item scale covers six categories: Space and Furnishings for Care and Learning, Basic Care, Language and Reasoning, Learning Activities, Social Development, and Adult Needs. Each item can be ranked from 1 to 7. A ranking of 1 describes care that does not even meet custodial care needs while a ranking of 7 describes excellent, high- quality personalized care. The Edwards family day care home received a cumulative score of 2.375 on the FDCRS. Deficits included a sterile and child-unfriendly interior, lack of interesting and colorful pictures and no pictures at child's eye level, insufficient opportunity for outdoor play, minimum hand washing requirements not met, diapers not checked regularly, failure to conduct regular fire drills, dim lighting, and insufficient activities to encourage language development. Ms. Bledsoe contacted Ms. Edwards to notify her the completed rating would be mailed to her. Ms. Bledsoe offered follow-up visits, technical assistance, and training classes for caregivers. Ms. Edwards rejected the offer of further assistance. While acknowledging that her recommendations were not mandatory, Ms. Bledsoe could recall no other day care provider rejecting additional help from CCSWF, which is provided free of charge. The need for Ms. Edwards to provide supervision at the family day care home and to be present was an important issue in the settlement of DOAH Case No. 01-2840. On October 10, 2001, prior to the signing of the settlement agreement, Ellen Blake, a licensing counselor for the Department, conducted a pre- licensing orientation and review at the Edwards home. Ms. Blake and Ms. Edwards had a lengthy discussion about supervision requirements. Ms. Edwards told Ms. Blake that she would be absent only when taking and picking her children up from school. She and Mr. Brueckman were sharing the care of the children. After obtaining licensure, Ms. Edwards appeared to be providing closer supervision of Mr. Brueckman. Ms. Edwards was present for six of the seven licensing inspections the Department performed between October 10, 2001, through June 18, 2002. However, testimony from Ms. Edwards' own witnesses established Ms. Edwards was readily available in the evenings to do extensive hours of volunteer work. Additionally, she transported her own minor children to after-school and weekend activities and was always available to transport other people's children to and from school and outside activities. Further, Ms. Edwards operated a photography business that often involved out-of-home shoots, including a large annual undertaking at St. Xavier School. Mr. Brueckman was left alone with children when Ms. Edwards was out of the home. Ms. Edwards' witnesses also established that she provides child care 24 hours a day, 7 days per week, which is a service not readily available in the community. The home is consistently well utilized, especially during the expanded hours. Mr. Brueckman was providing evening and night supervision, and slept in the same room as the children under his care. The Edwards have three minor children who often have multiple friends spend the night for sleep-overs. Neither the Edwards children nor their friends were restricted from access to the designated child care room. On June 13, 2002, the Department received an abuse report stating that Wayne Brueckman sexually abused D.S., a two- and a half-year-old boy in care at the Edwards family day care home. On June 20, 2002, during an interview with the Lee County Sheriff's Office, Mr. Brueckman admitted to inappropriately touching the child's penis and having the child touch his penis during diaper changes. Mr. Brueckman has been charged with two counts of felony lewd and lascivious molestation and is awaiting trial. Commission of sexual battery on a two-and-a-half-year- old child is a serious violation of the obligation of a child care provider to supervise a child entrusted to their care and for which they are receiving payment. Molestation of a child creates a great likelihood of actual or potential harm. Mr. Brueckman lived at the Edwards home and received only room and board for the continuous care he provided for the children of paying clients, as well as Ms. Edwards' three minor children and their numerous friends. Mr. Brueckman admitted to having had no dating or sexual relationships with an adult for over ten years. He had no private time and felt overwhelmed by his work situation. On June 20, 2002, the Department cited Ms. Edwards for a deficiency in supervision as she failed to meet the needs of children in her care due to Wayne Brueckman's molestation of D.S. The operator of a family day care home is ultimately responsible for the supervision of the children in care. Rule 65C-20.009(3)(a), Florida Administrative Code. Upon learning of Mr. Brueckman's actions, Ms. Edwards immediately evicted him from her house. To meet the requirement that she have a trained substitute caregiver in the home, Ms. Edwards designated her husband as her substitute in July 2002. As of the date of hearing, Mr. Edwards had not completed the required training. During the nine licensing inspections the Department performed between October 10, 2001 through July 1, 2002, various violations of minimum licensing standards were found, including: inadequate lighting in the playroom; failure to keep up-to-date immunization records; failure to keep on file the required enrollment information; ants on the kitchen table; home, furnishings, toys and equipment not kept clean and in good repair; incomplete first aid supplies; and hazardous materials (alcoholic beverages and protein shake mix) within a child's reach. Ms. Edwards corrected all these violations. The Department never sought to fine Ms. Edwards for any of the cited violations. By notice, dated August 14, 2002, the Department revoked Ms. Edwards' license based on the reasons delineated in the letter including past history, licensing inspections, the arrest of Mr. Brueckman for lewd and lascivious molestation of a child at the family day care home, and the ongoing failure to have a qualified substitute.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking the license of Marcia Edwards to operate a family day care home. DONE AND ENTERED this 5th day of February, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 5th day of February, 2003.
The Issue The issue in the case is whether the application for registration of the Tonya Rodreguez Registered Family Day Care Home (Respondent) should be denied.
Findings Of Fact Since 1994, and at all times material to this case, Mrs. Rodreguez has operated the Respondent, which is located at 2736 Lemon Street, Fort Myers, Florida. On October 25, 2010, Mrs. Rodreguez filed an application with the Petitioner for registration of the Respondent. The previous registration had lapsed. Since 1992, and at all times material to this case, Mrs. Rodreguez has been married to her husband, Terry Rodreguez (Mr. Rodreguez). In 1990, Mr. Rodreguez was convicted of possession of a controlled substance and a concealed firearm. Mrs. Rodreguez was aware of her husband's criminal conviction. The registration application included a section where an applicant was directed to list "OTHER FAMILY/HOUSEHOLD MEMBERS." The application filed on October 25, 2010, by Mrs. Rodreguez disclosed only herself and her three children. Mrs. Rodreguez did not list her husband on the application. On June 23, 2010, a child protective investigator (CPI) commenced an unrelated investigation of the Respondent and went to the Lemon Street address. Mr. Rodreguez was present in the home when the CPI arrived. The CPI testified without contradiction that Mr. Rodreguez was uncooperative. She returned to the Respondent later that day accompanied by a law enforcement officer, but, when they arrived, Mr. Rodreguez was no longer present at the Respondent. On June 24, 2010, the CPI returned to the Lemon Street address, and Mr. Rodreguez was again present. During questioning by the CPI on that date, Mr. Rodreguez stated that he resided in the home. Additionally, Mrs. Rodreguez advised the CPI that she and her husband had separated, but acknowledged that she and her husband both resided at the home. At the hearing, Mrs. Rodreguez asserted that she has been separated from her husband for many years; however, she acknowledged that they remain legally married, that he uses her address as his legal address, and that her address is listed on his driver's license. She testified that he is homeless and that he returns to the house to see her children. Mr. Rodreguez was issued several traffic citations between January and July of 2010, and all of the citations identified his address as 2736 Lemon Street, Fort Myers, Florida.
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 denying the application for registration of the Tonya Rodreguez Registered Family Day Care Home. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of April, 2011.
Findings Of Fact Audrey Jones (Respondent) was granted a foster care license by the Department of Health and Rehabilitative Services (Petitioner) in August 1994. Respondent sought to renew her foster care license. By letter dated June 14, 1995, Petitioner notified Respondent that her foster care license would not be renewed because of a proposed confirmed abuse report. On July 6, 1994, Respondent signed an agreement, entitled "Discipline Policy Agreement", agreeing to comply with Petitioner's discipline policy. The Discipline Policy Agreement provides in pertinent part: The following disciplinary practices are FORBIDDEN in the caring for your foster child. Failure to comply may result in an investiga- tion and possible closure of your home. * * * Hitting a child with an object. Slapping or spanking a child, or ANY OTHER physical discipline. On August 23, 1994, as a condition of licensure, Respondent signed an agreement, entitled "Agreement To Provide Substitute Care For Dependent Children", with Petitioner. This agreement provides in pertinent part: As substitute care parent(s) for the Department of Health and Rehabilitative Services, we agree to the following conditions considered essential for the welfare of this dependent child placed in our home: * * * 2. We are fully and directly responsible to the department for the care of the child. * * * We will comply with all requirements for a licensed substitute care home as prescribed by the department. We will immediately report any injuries or illness of a child in our care to the department. * * * 19. We will abide by the department's discipline policy which we received during the MAPP training. In May, 1995, Respondent was the foster parent of B. W., a female child. At that time, B. W. was nine years old and had been in Respondent's care for less than one year. On May 22, 1995, B. W. was examined by a physician of Petitioner's Child Protective Team as a result of an abuse report made against Respondent that same day. The examination revealed multiple linear abrasions, scabbed linear lesions, and bruises on B. W.'s upper thighs and buttocks, with the injured areas being tender. The injuries had been inflicted with a brush-type instrument and had been inflicted within three days prior to the examination. The lesions and bruises could not have been, and were not, self- inflicted. Respondent inflicted the lesions and bruises upon B. W. with a brush. B. W. has been in several foster homes over the years. She admitted that she has told several truths and "stories" about former foster homes. However, in this situation, B. W. is found to have spoken the truth. On May 22, 1995, B. W. informed Petitioner's abuse investigator, the examining physician, and a supervisor at the Mental Health program that she attended that Respondent had punished her with a brush and that the lesions and bruises were a result of that punishment. All of these individuals observed the injuries on May 22, 1995. During the three-day period prior to the report and discovery of the lesions and bruises, B. W. was in the custody and control of Respondent. At no time did Respondent seek medical treatment for B. W.'s injuries. Nor did Respondent notify Petitioner of the injuries. Respondent violated both the Agreement to Provide Substitute Care for Dependent Children and the Discipline Policy Agreement that she had with Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services deny the renewal of Audrey Jones' foster care license. DONE AND ENTERED this 29th day of March, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 29th day of March, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 4. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 2. 5. Partially accepted in finding of fact 2. 6. Partially accepted in finding of fact 5. 7. Partially accepted in finding of fact 5. 8. Partially accepted in finding of fact 7. 9. Rejected as being unnecessary. 10. Partially accepted in finding of fact 10. 11. Partially accepted in finding of fact 10. 12. Partially accepted in finding of fact 11. 13. Partially accepted in finding of fact 9. 14. Partially accepted in finding of fact 6. 15. Partially accepted in finding of fact 5. 16. Partially accepted in findings of fact 1 and 9. NOTE - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the more credible evidence, argument, or a conclusion of law. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Health and Rehabilitative Services 401 Northeast Second Avenue Suite N-1014 Miami, Florida 33128 Harry G. Robbins, Esquire Presidential Circle Building 4000 Hollywood boulevard Suite 630 North Hollywood, Florida 33130 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sandy Coulter Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are: (a) Whether Petitioner's license as a family day care should be renewed; (b) Whether Petitioner was required to list Halvert Swanson as a household member on her annual application for a family day care license; and (c) Whether Halvert Swanson, a convicted sex offender, was a member of Petitioner's household at any time between 1997 and 2000.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant to this matter, Petitioner, Gennell Hardnett, d/b/a Nell's Day Care, was licensed by Respondent to operate a family day care out of her home located at 513 West 14th Street, Apopka, Florida. Petitioner had been licensed by Respondent in 1995 as a family day care facility, and her license has been renewed on an annual basis therefor. Petitioner's license permitted her to operate 24 hours a day, Monday through Saturday. However, Petitioner actually operated her day care from 6:30 a.m. until midnight, Monday through Friday. She was never open during the weekends. Petitioner's application for renewal of her license for the year 2000-2001 was denied. As part of her licensing requirements, Petitioner knew she was to list on her Application for Licensing all of her household members for possible background screening. This is to ensure that all members of her household were properly screened for disqualifying offenses. For each of the five years since 1995, Petitioner listed herself and her sons, Quantas Hardnett and Demetric Hardnett, as household members on her licensing application. She did not list another son, Halvert Swanson, as a household member. On her renewal application for the year 2000-2001, Petitioner listed as household members, herself and her son Quantas Swanson because Demetric, at the time, was residing with an aunt. Halvert Swanson was, again, not listed. Halvert Swanson, also the son of Petitioner, had been convicted of the felony of attempted lewd acts upon a child under the age of sixteen in approximately 1990. Swanson was in the custody of the Department of Corrections from approximately February 3, 1990 to June 1, 1993. He was released from custody in 1993. Following his release from prison, Swanson listed the address of his mother, Petitioner, as his residence address with the State of Florida, Department of Corrections. Petitioner was aware that her son Halvert had been convicted of this crime. She also knew that her son Halvert Swanson was not permitted to be a holdhold member, and was not to be permitted unsupervised contact with children under Petitioner's care. Petitioner has never listed on her applications, nor notified Respondent, that her son, Halvert Swanson, resided at her family day care facilities, located at 513 West 14th Street, Apopka, Florida On September 23, 1997, Barbara Osborne, a Department of Corrections probation specialist, visited with Halvert Swanson in the residence located at 513 West 14th Street, Apopka, Florida. The purpose of Osborne's visit with Swanson was to monitor his compliance with conditions of his release from prison. This visit with Swanson was unannounced. During the visit with Swanson, Osborne confirmed that Swanson resided at the address on 513 West 14th Street. During her visit with Swanson, Osborne also observed several children at the home. She was not aware if Petitioner was present or not. Osborne informed Swanson that if he intended to continue to reside at the house at 513 West 14th Street, Petitioner would need to complete an affidavit addressing whether Swanson had unsupervised contact with children. Osborne returned to the house at 513 West 14th Street on November 18, 1997, because Swanson had not reported to Osborne as required. During her visit to the house, Osborne spoke with Petitioner who confirmed that Swanson was still residing at the home at 513 West 14th Street. Osborne reminded Petitioner of the conditions on Swanson's release regarding no unsupervised contact with children, and let her know that she would have to complete an affidavit if he continued to reside at Petitioner's home. Early in the year 2000, a local television reporter for WKMG, Channel Six, Tony Pipitone, while investigating a news story, visited Petitioner's home. While there, Pipitone asked if Halvert Swanson was there. Petitioner replied "No," and Pipitone left. He later returned to Petitioner's home, this time with a cameraman. Pipitone asked Petitioner if Halvert Swanson lived there, and this time Petitioner replied "Yes," and that he stayed there on weekends. The story aired on local television, and Respondent was made aware of the allegation that a felon with a conviction of attempted lewd acts on a child under the age of sixteen was living at a family day care. In April 2000, Respondent learned from a local television reporter that Petitioner stated to the reporter that Halvert Swanson stays at her house on weekends. Some of Respondent's staff reviewed a video-tape of Petitioner's statement to the local reporter. By letter dated April 21, 2000, Respondent denied Petitioner's application for re-licensure of her facility for the year covering May 2000-2001. Petitioner offered testimony of several witnesses who were unable to recall accurate details about Halvert Swanson's whereabouts from 1990 through 2000. However, it appears that, since his release from prison, Swanson had no permanent place of residence, but moved about, living with various relatives and girlfriends at his convenience. In addition, he was incarcerated for parts of this time period. During the relevant time period, Halvert Swanson, on occasion, visited the home of Petitioner and stayed overnight with his mother and his brothers on weekends. Swanson was also asked to stay at and look after Petitioner's home on several weekends while Petitioner and her other sons were out of town. Swanson continued to visit with his mother and brothers at 513 West 14th Street, Apopka, Florida, and continued to use her home as his permanent address. In the five years that Petitioner operated her licensed family day care center, the children under the care of Petitioner have not been injured or hurt.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for re-licensure of her family day care home, for the year 2000-2001. DONE AND ENTERED this 19th day of October, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 19th day of October, 2000. COPIES FURNISHED: Paul V. Moyer, Esquire Moyer, Straus & Patel, P.A. 815 Orienta Avenue, Suite 6 Post office Box 151058 Altamonte Springs, Florida 32715-1058 Eric D. Dunlap, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 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
The Issue The issue is whether Petitioner should be granted an exemption from employment disqualification pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact Petitioner is forty-three years old. His wife, Margaret Bryant, has applied for a license to operate a family day care home. In March 1987, a law enforcement officer detained Petitioner on suspicion of robbery, placed Petitioner in the backseat of a patrol car, and transported him to the police station. Petitioner was the last person to ride in the patrol car before the law enforcement officer found cocaine in a matchbox in the back seat of the patrol car. Subsequently, Petitioner was arrested and charged with robbery and possession of cocaine. In April 1987, Petitioner pled guilty to aggravated assault pursuant to Section 784.021, Florida Statutes, and possession of cocaine pursuant to Section 893.13, Florida Statutes. He was adjudicated guilty of a third-degree felony for aggravated assault and a second-degree felony for possession of cocaine. The court sentenced Petitioner to 24 days, time served. In January 1992, Petitioner was living with a former girlfriend, Gloria Sanderford. Petitioner and Ms. Sanderford had an argument over some marijuana. During the argument, Petitioner hit the wall then left the residence. When he returned to the residence, Petitioner broke a window in an attempt to gain entry. In February 1992, Petitioner was charged with assault pursuant to Section 784.011, Florida Statutes, and with criminal mischief pursuant to Section 806.13, Florida Statutes. After pleading no contest to these charges, Petitioner was adjudicated guilty of a second-degree misdemeanor on both counts. Petitioner was sentenced to 16 days, time served, and 90 days' probation. The court ordered Petitioner to make restitution to Ms. Sanderford in an amount not to exceed $250. During the hearing, Petitioner admitted that he was convicted of burglary in 1994. Petitioner testified that he was sentenced to three years in jail and was eventually released on parole. The record does not reflect any additional details about this conviction. In September 1996, Petitioner and a former girlfriend, Janet McClendon, fought over some money resulting in a bruised lip and eye for Ms. McClendon and a cut on Petitioner's wrist. Petitioner and Ms. McClendon were using drugs at the time of the incident. In October 1996, Petitioner pled no contest and was adjudicated guilty of a first-degree misdemeanor battery pursuant to Section 784.03, Florida Statutes. The court sentenced Petitioner to 45 days in jail with credit for 18 days, time served. Subsequently, Petitioner returned to jail for violation of parole. On August 8, 1998, Petitioner and Margaret Bryant were not married, but were living together; they had an argument during which Petitioner pushed her. Ms. Bryant called the police resulting in Petitioner's arrest for battery pursuant to Section 784.03(1), Florida Statutes. On August 28, 1998, the court adjudicated Petitioner guilty of a first-degree misdemeanor battery for violating Section 784.03(1), Florida Statutes. Based on this conviction, the court sentenced Petitioner to five months' incarceration with credit for 21 days, time served. The court also ordered Petitioner to complete the Door Program and to participate in family counseling. After Petitioner was released from jail the last time, he began attending church. Petitioner continues to be active in his church, serving as the camera person and participating in the on-going family enrichment and marriage counseling program. Petitioner's pastor considers Petitioner to be a church leader, a loving husband, and devoted stepfather to Ms. Bryant's two children. The pastor's opinion of Petitioner is supported by many of the church members. Petitioner's mother confirms that Petitioner has turned his life around since he stopped abusing drugs and alcohol, and he often helps his mother with household chores. According to Petitioner's mother, Petitioner is a good husband and father to his stepchildren and his goddaughter. Ms. Bryant and Petitioner have been married for almost three years, but they have lived together for several years longer. She testified that Petitioner is a loving husband and stepfather. She asserts that as a couple, they have learned how to deal with the challenges of married life. According to Ms. Bryant, she and Petitioner now have the skills to keep their marriage healthy. Petitioner has a general education diploma and is an electrician by trade. He worked for one electric company for about 14 years; he has been employed as an electrician with his current employer for over two years. Petitioner's employer regards him as a hard worker who is trusted with jobsite responsibilities and recommends Petitioner as a person of character. Petitioner admits that his drug and alcohol abuse caused him problems in the past, and he does not deny his criminal history. However, Petitioner stopped using drugs and alcohol after his last incarceration in August 1998. He now has a strong marriage to Ms. Bryant and a commitment to his church and has accepted the responsibility for helping Ms. Bryant raise her children. Petitioner serves as a mentor for other young children. Petitioner's church and family provide him with a solid support system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner an exemption from disqualification. DONE AND ENTERED this 18th day of April, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 18th day of April, 2002. COPIES FURNISHED: Anthony Bryant 960 Ontario Street Jacksonville, Florida 32254 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Peggy Sanford, 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
