The Issue Whether Respondent violated Section 65C-22.001(5)(a), Florida Administrative Code, as set forth in the Administrative Complaint, and if so whether a civil penalty in the amount of one hundred Dollars ($100.00) should be imposed.
Findings Of Fact Respondent is a duly-licensed day care facility, licensed by Petitioner, in accordance with Sections 402.319, Florida Statutes, and has been in operation for eight years. Respondent has never been cited for any prior violation. Respondent has elected to provide child care for both infants and toddlers as a convenience for its patrons. Petitioner's rules provide that toddlers must be physically separated form infants. Respondent has accomplished this physical separation by taking a portion of the room in which it keeps toddlers, and creating a separate area for infants using low bookcases to physically separate the toddlers form the infants. This has been the subject of debate and controversy between Petitioner and Respondent over time; however, it was concluded that this met the conditions established in the rule regarding separation and the two areas met size limitations. It was determined that Respondent would have to meet the staffing requirements by maintaining a staff ration of 1:4 in the infant area and a staff ratio of 1:6 in the toddler area. On August 10, 2001, an incident occurred which resulted in Petitioner's staff reviewing video footage of activities in the toddler/infant room. The instant complaint arises from those observations. At formal hearing, the video was introduced and watched by the trier of fact. This video shows most of the toddler/infant room as seen from above and behind the infant section. The video covers a period of time of approximately twenty minutes around 1:35 p.m.1 In summary, the video shows the person in charge of toddlers leave the toddlers/infant room leaving the infant care supervisor holding an infant in the infant area. The infant care worker steps over the barrier between the two areas of the room, and changes the infant at a changing station located in the toddler area of the room. The toddler supervisor returns and the infant supervisor leaves to go to the bathroom returning several minutes later. All of these events occurred during the period designated on the facility's schedule as "nap time." During the period in question, not all the toddlers or the infants were asleep, and one of the toddlers was in a high chair eating a snack the entire time. Petitioner alleges, based upon the foregoing, a violation of Rule 65C-22.001(5)(a), Florida Administrative Code.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint should be dismissed. DONE AND ENTERED this 12th day of September, 2002, 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 12th day of September, 2002.
The Issue Was Petitioner properly disqualified from working in a position of special trust pursuant to Section 435.04, Florida Statutes, on the basis of a July 21, 1996, incident? If Petitioner was properly disqualified as a result of the July 21, 1996, incident, has she been sufficiently rehabilitated so as to be eligible for an exemption to work in a position of special trust, pursuant to Section 435.07(3), Florida Statutes?
Findings Of Fact Petitioner was licensed through Leon County as a family home day care provider in 1995. Since 1996, she has been operating her family day care home pursuant to an exemption from disqualification by a 1973 disqualifying felony (manslaughter). Petitioner is a high school graduate. She was schooled and certified in New York as a nurse technician. She is certified as a home health aide in Florida. When she sought to renew her license in 2000, Petitioner was required to sign an Affidavit of Good Moral Character. The 2000 Affidavit of Good Moral Character read: By signing this form, I am swearing that I have not been found guilty or entered a plea of guilty of nolo contendere (no contest), regardless of the adjudication, to any of the following charges under the provisions of the Florida Statutes or under any similar statute of another jurisdiction. I also attest that I do not have a delinquency record that is similar to any of these offenses. I understand I must acknowledge the existence of criminal records relating to the following list regardless of whether or not those records have been sealed or expunged. I understand that I am also obligated to notify my employer of any possible disqualifying offenses that may occur while employed in a position subject to background screening under Chapter 435, Florida Statutes. The 2000 Affidavit then listed a number of offenses and the corresponding statute numbers. Among the offenses listed were: Sections 741.30 domestic violence and injunction for protection. 784.03 battery, if the victim was a minor. The 2000 Affidavit is DCF's attempt to paraphrase Section 435.04, Florida Statutes, listing disqualifying offenses. It is flawed and could be misleading because domestic violence can occur without an injunction for protection. Petitioner signed the 2000 Affidavit on January 25, 2000, in the portion declaring herself free of any disqualifying statutory violations and also signed the Affidavit in the portion stating, "To the best of my knowledge and belief, my record may contain one or more of the foregoing disqualifying acts or offenses." Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident on her 2000 Affidavit because she did not think it constituted domestic violence, but why she signed contradictory statements was not explained. Petitioner's day care license was renewed, despite Petitioner's contradictory declarations on her 2000 Affidavit. She was notified of her disqualification when the five-year background screening turned-up an offense that had occurred on July 21, 1996. The Year 2000 background screening results which DCF received from the Florida Department of Law Enforcement indicated that Petitioner had been found guilty of "battery," on the basis of the July 21, 1996, incident. The Department's Background Screening Coordinator then obtained additional documentation from the file of the Leon County Court. Based on the information in the court file, the Department's District II Office concluded that Petitioner was disqualified because of a "domestic battery" offense. Petitioner exhausted informal procedures and timely requested an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes (2000). The instant case followed. The instant case is the second occasion Petitioner has appeared before the Division of Administrative Hearings requesting an exemption from disqualification to work in a position of special trust. The first occasion Petitioner appeared before the Division occurred in September 1996, when she sought an exemption because she had been disqualified due to her 1973 felony manslaughter conviction in New York. Petitioner had failed to disclose the 1973 felony conviction on her 1995 affidavit when she first applied to be a child care worker.1 That disqualifying offense showed-up in the initial screening procedures applicable to such applicants. Petitioner was granted an exemption for the 1973 manslaughter conviction in Harris v. Department of Health and Rehabilitative Services, DOAH Case No. 96-2010 (Recommended Order entered September 10, 1996; Final Order entered October 30, 1996), as more fully described below in Findings of Fact 34-36. She has been a licensed day care provider ever since. In 1996, Petitioner and Frank Fields had a romantic involvement bounded by Mr. Fields' keeping most of his belongings at his sister's apartment and merely sleeping over at Petitioner's home two to three nights per week, on a sporadic basis.2 On these occasions, he brought with him, and occasionally left in Petitioner's home, only his underwear and some music CDs. At all times material, Frank Fields was an adult male. Although younger than Petitioner, he was not a minor. On July 21, 1996, Petitioner, who was then 47 years old, was two months' pregnant with Frank Fields' child. She testified that at that time she was very upset and confused because of her pregnancy; because Mr. Fields was not helping with household expenses; and because she had heard that Mr. Fields was moving from his sister's apartment to an apartment of his own. On July 21, 1996, Petitioner was driving her car on Blountstown Highway. She noticed Mr. Fields' van and also noticed that there was a female in the passenger's seat of the van. Apparently, Petitioner believed that Mr. Fields was romantically involved with his female passenger. Petitioner had one adult daughter; the adult daughter's three children, all under the age of nine years, and her own eight-year-old daughter with her in her car. According to Petitioner's testimony, none of the four children in her car were young enough to require a car seat and none of her day care children were in her car. According to the police officer who later arrested Petitioner, there were six "children" in the back seat of Petitioner's car, not six people in the whole car. Regardless of this discrepancy in testimony, it is undisputed that there were no car seats and insufficient car safety belts for the number of passengers in Petitioner's car on July 21, 1996. Without approving either Petitioner's motivation or her reasoning, I find credible her testimony that she would not have taken her next actions had there been any day care children in her car because if day care parents found out about it, Petitioner could be "put in jeopardy"; she "could be in a lot of trouble"; and she would not have had day care children with her over a weekend. July 21, 1996 was, in fact, a Sunday. In making the immediately foregoing Finding of Fact, I have not overlooked Ms. Brantley's testimony that on occasion Petitioner has kept Ms. Brantley's children in Petitioner's home on nights and weekends while Ms. Brantley traveled. However, even assuming arguendo, but not ruling, that six rather than four children were in Petitioner's car on July 21, 1996, there is no direct evidence that any of them were also day care clients. Petitioner drove her car, filled with passengers, following Mr. Fields' van. Mr. Fields turned onto Nekoma Lane and pulled over to the side of the road. Petitioner pulled over and intentionally bumped her car into the back of Mr. Fields' van. Petitioner and Mr. Fields exited their respective vehicles, and Petitioner demanded to know who Mr. Fields' female passenger was, even though Petitioner knew the passenger was named "Melissa." Some screaming ensued, and Petitioner and Mr. Fields "tussled," hitting and scratching each other. Petitioner and her adult daughter testified that they did not know who struck the first blow. The non-hearsay evidence is insufficient to establish that on this occasion Petitioner left a bite mark on Mr. Fields' arm. When Mr. Fields began to wield a stick he had picked up from the side of the road, Petitioner's adult daughter got between him and her mother. Petitioner then drove her car, still containing its passengers, so as to follow Melissa, who had walked around the corner. Petitioner then "had a conversation" with Melissa. There is no evidence that the children were anywhere except inside Petitioner's car during either her confrontation with Mr. Fields or with Melissa. When the police arrived on the scene, Petitioner was arrested for battery and for driving with a suspended driver's license. The suspended license charge arose because, when questioned by the police, Petitioner gave her name as "Veronica L. Wynn." Petitioner's legal name was, in fact, "Veronica Harris." Petitioner also told the officer that her date of birth was September 19, 1959, and that she lived at 2106 Monday Street. Petitioner's true date of birth is September 19, 1949, and her true address was 1229 Elberta Street. When the officer could not find a driver's license record for "Veronica L. Wynn," Petitioner told him that the name on her license might be "Veronica Lee Harris Wynn." After she gave him the name "Veronica Lee Harris Wynn," the officer found Petitioner's driver's license record and learned that her driver's license had been suspended. Petitioner had recently been divorced and had "gone back" to her maiden name, but she testified herein that on July 21, 1996, she deliberately gave incorrect information to the police because she knew her driver's license was suspended and the police were going to check on it. Mr. Fields was provided with a pamphlet explaining his right to request domestic abuse protection and prosecution. Apparently, he did nothing about it. Petitioner was charged, in an Information which recited the statutory language of both Subsections 784.03(1) (a) and (b), Florida Statutes (1995), with "battery (M1)," meaning "first degree misdemeanor battery." The Information cited only "Section 784.03, Florida Statutes," for that offense. The Information also charged Petitioner with "driving while license suspended or revoked (M2)" also a misdemeanor, under Section 322.34(1), Florida Statutes (1995). On August 28, 2000, Petitioner entered a "no contest" plea to both charges. Petitioner was adjudicated guilty of misdemeanor battery and was ordered to serve 12 months of probation with the following conditions: (1) no contact with Frank Fields; (2) $155.00 court costs; and (3) $100.00 fine. She was also required to pay a monthly supervision fee while on probation and a fee for the services of the public defender. There was no charge, plea, or sentence stating "domestic violence" or citing a domestic violence statute. Petitioner was not required to attend a batterers' intervention program, pursuant to Section 741.281, Florida Statutes. No evidence was presented to show that the sentencing court had made written, factual findings that attendance at a batterers' intervention program would be an inappropriate condition for her probation. Petitioner's probation was terminated in December 1997. Petitioner miscarried her child conceived of Frank Fields before a live birth. Petitioner's emotional connection with Mr. Fields seems to have terminated with the July 21, 1996, incident. At the September 9, 1996, formal exemption hearing in Harris v. Department of Health and Rehabilitative Services, DOAH Case No. 96-2010 (see Finding of Fact No. 12) Petitioner and her witnesses did not divulge that six weeks earlier, on July 21, 1996, Petitioner had been arrested for her altercation with Frank Fields or that less than two weeks earlier, on August 28, 1996, Petitioner had pled "no contest" to battery of Frank Fields. Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident during the 1996 formal exemption proceeding before the Division because "it was not part of my day care home and had nothing to do with day care children."3 The Recommended Order in DOAH Case No. 96-2010 observed that "Petitioner, now a grandmother, testified tearfully to her errant behavior at the age of 21, over 24 years ago in New York. Petitioner has never been charged with any legal violation since that time, with the exception of traffic tickets . . .since the [1973] incident, . . . Petitioner has lived an exemplary life . . . ." That Order recommended granting an exemption. The outcome of the Final Order, entered October 26, 1996, was that Petitioner was exempted from the 1973 felony disqualification.4 Petitioner contends that she never committed "domestic violence" and even if she did, she has been "rehabilitated" since July 21, 1996. She feels that she should be granted an exemption because she is sorry for what she did; because if she had been thinking, she would not have done it; and because she loves her day care children. Since 1996, Petitioner has operated her family day care home and has pursued her goal of becoming a Master Provider of day care. In order to become a Master Provider, one must have taken the Second Helping Course (a refresher course for experienced day care providers); have either a Child Development Associate Certificate or national accreditation; and have five years' experience. Currently, there are only two Master Providers in Leon County. In 1998, Petitioner received a $500.00 Caring for Kids Mini-Grant which she used to purchase day care toys. In March 2000, Petitioner received a scholarship from the T.E.A.C.H. Early Childhood Project, which she had planned to use to take classes at Tallahassee Community Hospital towards her Child Development Associate certification. Petitioner has put this project on "hold" during the pendancy of the instant case. In May 2000, Petitioner completed the Second Helping Course. In Leon County, only approximately 20 family home day care providers have taken this course. In 2000, Petitioner received a $275.00 Caring for Kids Mini-Grant which she used to help pay for her Second Helping Course. Petitioner was selected to receive a Kids Incorporated Infant/Toddler Initiative Grant of $3,000, which she intended to use to purchase toys and equipment for her day care home. Petitioner was hand-picked by Kids Incorporated because of her genuine love and concern for the children and because Kids Incorporated felt that Petitioner only needed additional toys and equipment in order to improve her day care home. However, because of the instant case, Kids Incorporated has not yet disbursed this money to Petitioner. Kids Incorporated wants to be assured the money will go to someone who will be a day care provider for the long-term. Petitioner has volunteered for the school readiness program sponsored by Kids Incorporated, which has resulted in additional visits and evaluations of her day care home. Her day care children have all scored "above average" in the program. Katherine Schmidt, a Family Child Care Specialist with Kids Incorporated, testified that she has evaluated and assessed Petitioner's day care home in her capacity with Kids Incorporated and during the period she was helping Petitioner obtain the grants mentioned above. Ms. Schmidt believes Petitioner is an excellent day care provider and would not be a danger to the children in her care. Ms. Schmidt also believes Petitioner would be a benefit to the children and their families. The Leon County Home Day Care Providers Association and Support Group meets monthly, and Petitioner regularly attends. Two day care providers wrote letters in support of Petitioner. Cicely Brantley is a professional music education teacher in Leon County's public school system. Ms. Brantley's two children attend Petitioner's family day care home. She has seen Petitioner briefly at least five days per week for the last two years. Ms. Brantley's older child is two and one-half years old and has been in Petitioner's day care home since he was nine months' old. Her younger child is 15 months old and has been in Petitioner's day care home since she was eight weeks old. Ms. Brantley testified that she trusts Petitioner with her children and that she trusts and values Petitioner's judgment when it comes to the children. Ms. Brantley often asks Petitioner's advice about parenting, discipline, and health issues involving her children. Ms. Brantley testified that other than her husband, Petitioner is the person she trusts the most with her children and that Petitioner goes above and beyond what most day care providers would do, both in education and care. Ms. Brantley was aware of the battery incident that occurred between Petitioner and Mr. Fields, but it did not change her opinion of Petitioner. She does not believe that Petitioner would ever be a danger to her children. Ms. Brantley really does not want to have to find other child care if Petitioner is unsuccessful in getting an exemption, and it is apparent that this concern has influenced her testimony. Versee Hoffman is a Pioneer with the Jehovah's Witnesses. This means that she has committed to serving 70 hours per month with her ministry. Ms. Hoffman met Petitioner approximately five years ago through church. Ms. Hoffman and Petitioner studied the Bible together periodically. At that time, Ms. Hoffman felt that Petitioner was not really committed to the church or its moral standards, and their studies ended. Thereafter, Ms. Hoffman did not see Petitioner for approximately two years. In early 1999, Petitioner approached Ms. Hoffman and told Ms. Hoffman that she wanted to renew their Bible studies. Ms. Hoffman agreed, and they have been studying the Bible together weekly ever since. Ms. Hoffman testified that the Jehovah's Witnesses expect their members to attend five weekly meetings and that Petitioner consistently attends those meetings. Ms. Hoffman testified that Petitioner has grown spiritually and personally since Ms. Hoffman first met her five years ago. Ms. Hoffman believes that Petitioner is truly committed to leading a spiritual life and to meeting the Jehovah's Witnesses' moral standards against violence. Ms. Hoffman believes that Petitioner will continue to meet these standards.
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 determining that Petitioner is not disqualified from working in a position of special trust solely on the basis of her 1996 battery conviction. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 13th day of November, 2000.
The Issue The issue in this case is whether Respondent, Agency for Persons with Disabilities (“APD” or the “Agency”), should have approved the application submitted by Petitioner, Our House Too (“Our House”), seeking licensure as a residential facility (specifically, a group home facility).
Findings Of Fact Our House applied for a license to operate a residential facility/group home with a capacity of five residents in February 2014. A group home is a place where persons with certain medical, psychological, or other limiting conditions, may reside and have companion care and specified personal care assistance services. The facility proposed by Our House would provide respite care, supported living coaching, and transportation services. Milsap signed the application form on behalf of Our House. Contained within the application was the following question: “Have you or anyone identified as a board member or party to ownership ever been identified as responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult?” Our House truthfully and accurately answered “No” to the question and submitted the application. The application was signed by Milsap and notarized on February 9, 2014. Milsap also owns and operates a registered family day care home. By letter dated April 14, 2015, Milsap was notified that an investigation which had been conducted by the Department of Children and Families (“DCF”) on March 5, 2014, at Ms. Milsap’s family day care home was now complete.1/ Milsap had been at her home when the investigation occurred, so she was already aware of the nature of the investigation and that it had occurred. By the time she received notice about the investigation being concluded, Ms. Milsap had already submitted her residential facility application to APD. No evidence was presented to indicate that Milsap was ever notified by DCF concerning sanctions or penalties resulting from the investigation of her family day care home. Nor is there any evidence she received notification that would allow her to contest the findings set forth in the investigative report. She was simply notified that the investigation had been completed. APD is the state agency responsible for, inter alia, licensing and monitoring residential facilities. By letter dated May 19, 2014, APD notified Ms. Milsap that the application for licensure as a group home facility was being denied because she was “responsible for the abuse, neglect, or abandonment of a child.” The decision stemmed from the aforementioned investigation conducted by DCF in March 2014 at Milsap’s registered family day care home. What DCF had concluded in its investigation (and ultimately reported to APD) was that on or about March 5, 2014, Ms. Milsap was serving as the owner and operator of Milsap Family Day Care Home. On that date, there were three children being cared for at the home. A child (identified herein as B.H.) sustained approximately 13 bites on his head, arms, and back while in Milsap’s care. Milsap was in the kitchen preparing food for the children when the biting occurred. There was a half door separating the kitchen from the room where B.H. and two other children were playing. The entire playroom was not directly visible from the kitchen area. There were no adults physically inside the playroom when the biting occurred. Milsap does not dispute that B.H. was bitten several times by one of the other children in the playroom. She maintains that her presence in the kitchen area was not improper as she did not know one of the children may have a propensity to bite and, therefore, she had no reason to be physically present in the playroom at all times. She maintains that she was appropriately caring for the children at all times and that the biting incident was unforeseen and was not preventable. The biting incident was the first offense cited against Milsap’s Family Day Care Home. Milsap has a reputation for providing good, quality care to the children in her charge. After completing its investigation, DCF made a verified finding of “inadequate supervision,” an offense under the general umbrella of abuse or neglect. DCF recommended remediation as the sanction for the incident, but there is no evidence as to whether remediation ever occurred. It is clear, however, that no action was taken against the Family Day Care Home license. In fact, the home’s license was renewed by DCF at its next renewal date in August 2014. Also, the DCF investigation concluded that the risk to the child (B.H.) was “low” following the incident. Nonetheless, APD considered the incident serious enough to warrant denial of Our House’s application for licensure to operate a group home facility. The person who purportedly made the decision to deny the application, Tom Rice (licensing supervisor), did not testify at final hearing as to his reasoning or basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Agency for Persons with Disabilities, upholding its denial of the licensure application filed by Petitioner, Our House Too. DONE AND ENTERED this 23rd day of April, 2015 in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 23rd day of April, 2015.
The Issue The issue is whether Respondent should approve Petitioner’s application for a family day care home license.
Findings Of Fact In 1996, Petitioner lived with her husband, their newborn child, three of her husband's children from a former marriage, and two of her children from a former marriage. Petitioner's stepchildren were: (a) I.M.B., a 15-year-old male; (b) S.J.B., a 14-year-old male; and (c) S.Y.B., a 13-year-old female. Petitioner's children by her former marriage were: (a) R.D.F., a six-year-old male; and (b) D.F., a five-year-old female. At the end of the school year in 1996, Petitioner spanked her stepdaughter for reasons related to her school work. She also spanked her stepsons for school-related reasons. However, the physical punishment of the stepchildren by Petitioner was not excessive. There is no competent evidence that Petitioner beat the stepchildren leaving bruises, scars, or other disfigurement. Petitioner's husband spanked his children at times, using a switch or an extension cord. After one such occasion, Petitioner's stepdaughter asked for some rubbing alcohol to treat a bruise. Petitioner has no first-hand knowledge about the bruise. There is no persuasive evidence that Petitioner's husband ever disciplined his children so severely as to scar or disfigure them. Since 1996, Petitioner completed her training as a licensed practical nurse. She continues to work part-time in that capacity. Petitioner has also earned money babysitting for other parents. Petitioner has never used corporal punishment of any kind to discipline other people's children. Petitioner has completed all necessary training to operate a family day care home. She knows that corporal punishment is not an acceptable way to discipline children in a day care facility. She understands that when children do not behave appropriately, she may do one of the following: (a) talk to the child; (b) place the child in time-out for one minute per year of age; or (c) call the child's parent. Petitioner currently lives with her husband, their son, and Petitioner's children from her former marriage. Petitioner's stepdaughter also lives with Petitioner. Petitioner's stepdaughter is 18 years of age and will be available to serve as a substitute caretaker if Petitioner is licensed to operate a family day care home facility. One of Petitioner's stepsons, I.M.B., is deceased. The other stepson, S.J.B., is in jail. S.J.B.'s son lives with Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner a license to operate a family day care home. DONE AND ENTERED this 12th day of July, 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 12th day of July, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Kimberly Strange-Bennett Post Office Box 58 Orange Lake, Florida 32681 Paul F. Flounlacker, Jr., 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 Should an exemption be granted to the Petitioner who pled nolo contendere to a charge of child abuse?
Findings Of Fact Wanda Gudith operates from her home a child daycare service. Wanda Gudith is married to Dennis R. Gudith, who lives in the family home. On June 22, 1996, S.L.B. was seen by the emergency room at Flagler Hospital in St. Augustine, Florida. The records of that visit reveal that S.L.B. is a white male born on August 9, 1986. At the time he was seen, S.L.B. weighed 110 pounds. S.L.B. presenting complaint was a bruised and tender buttock. The records of S.L.B.'s hospital examination reveal that his left buttock was bruised and tender. It was reported in the hospital case history that the injury was caused by having been struck the previous day by "the baby sitter." Examination of the injury revealed no broken skin and no drainage. The final diagnosis was that S.L.B. had a bruised buttock. The medical report also indicates that the sheriff's department was notified. See Respondent's Exhibit No. 8. On July 19, 1996, a supplemental investigation was conducted by the St. Johns County Sheriff's Office. The victim, S.L.B., was interviewed and reported that he had thrown a toy car which nearly hit another child, where upon Wanda Gudith had sent him inside to be disciplined by her husband, Dennis Gudith. Dennis Gudith had him bend over and grab his ankles, and then struck him with a wooden cutting board. The victim reported that "it hurt badly." The victim also reported that later the same day Wanda Gudith spanked him on the same spot with a wooden spoon. The victim stated that Mr. Gudith had spanked him on previous occasions, but that it had not left any marks. The investigator's written report states that the photographs of the injury were reviewed, and a noticeable large bruise was observed on the left cheek of the victim's buttock. See Respondent's Exhibit No. 9. On August 26, 1996, the investigator interviewed Wanda Gudith. Ms. Gudith reported that she had baby-sat for S.L.B. for approximately a year and that he had lived with them for a few weeks while his father was out of town. Gudith said that they had had behavior problems with the victim and that he sometimes acted out. On the day in question, Ms. Gudith reported that the victim had been told several times not to throw things around the other children. When S.L.B. threw items again, Ms. Gudith sent the victim into the house to be disciplined by her husband. See Respondent's Exhibit No. 9. Mr. Gudith reported that the victim did as he had been told and that her husband spoke with him about not throwing things around the other children. Ms. Gudith stated that her husband then spanked the victim using as a paddle a wooden cutting board, which was turned over to the investigator as evidence. See Respondent's Exhibit No. 9. On August 27, 1996, the investigating officer met with the father of the victim, who signed a complaint affidavit against Dennis Gudith for child abuse. See Respondent's Exhibit No. 9. On September 9, 1996, the investigating officer forwarded the file to the state's attorneys' office for a decision on whether a case would be filed against Mr. Gudith. See Respondent's Exhibit No. 9. Dennis Gudith testified at the hearing. Mr. Gudith entered a plea of nolo contendere to the charges filed against him for child abuse because he had struck the child and because it was cheaper than contesting the charges. The court withheld adjudication and placed Mr. Gudith on six-months supervised probation. Among the conditions established by the court was that Mr. Gudith attend anger control counseling with the Salvation Army. Mr. Gudith successfully completed all of the conditions of his probation and was released early from probation. See Petitioner's Exhibit No. 4 with attachments, and Petitioner's Exhibit No. 5 with attachments. The attachment to Petitioner's Exhibit No. 6 reveal that both Mr. and Ms. Gudith have completed a 30-hour course of instruction on operating a home daycare facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department grant Mr. Gudith's request for an exemption. DONE AND ENTERED this 15th day of May, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1998. COPIES FURNISHED: Dennis R. Gudith 4225 Rues Landing Road St. Augustine, Florida 32092 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should have granted Petitioner a license to operate a family day care home.
Findings Of Fact In January 1992, Petitioner operated a foster home for dependent children. The foster home was licensed by Respondent's predecessor, the Department of Health and Rehabilitative Services (hereinafter referred to as Respondent). In January 1992, Respondent received a report that Petitioner and her husband, Jim Shell, had meted out bizarre and excessive punishments to the children in their foster home. The report also alleged that Petitioner tied the younger foster children into their cribs at night. This report resulted in an investigation by Respondent. In the year prior to the initiation of the investigation, the following children stayed in Petitioner's foster home: H.S. (d.o.b. 4-6-89); S.S. (d.o.b. 10-1-86); T.H. (d.o.b. 5-3-89); S.A.C. (d.o.b. 9-18-88); B.Y. (d.o.b. 11-2-80) and G.Y. (d.o.b. 12-2-82. H.S. and S.S. were sisters. S.A.C., B.Y. and G.Y. were siblings. T.H. was mentally retarded. Petitioner gave B.Y. more household duties in the home than would be expected as chores for a child of her age. These responsibilities included housecleaning, laundry and child care. Additionally, Petitioner often kept B.Y. home from school to do housework. To excuse B.Y.'s absence, Petitioner would write notes to the school, falsely stating that B.Y. had a doctor's note and stayed home sick. B.Y. and G.Y. were forced to do push-ups as punishment for minor infractions. Petitioner's testimony that the children were required to do these push-ups as a joke or game is not persuasive. Mr. Shell spanked G.Y. for mis-reciting spelling words. This occurred once a week. On one occasion, B.Y. observed Mr. Shell hit G.Y. on the buttocks with a two by four. On another occasion, Mr. Shell jerked S.A.C. off a trampoline in the backyard, spanked her and threw her onto the ground. As a result of this rough treatment, S.A.C.'s head struck a tree. Petitioner regularly tied H.S.; S.S.; T.H.; and S.A.C. into their cribs at night because they would get up after being put down for the night. When B.Y. untied the children, Petitioner told her that when the children are tied up, they are supposed to remain that way. There was great strife in the Shell household. Petitioner and her husband often argued. For example, on B.Y's first night in the home, Petitioner hit Mr. Shell on the head with a frying pan. It is contrary to Department policy to physically restrain or punish children in foster care. Foster parents learn this in the training they receive before receiving their foster care licenses. Notwithstanding Petitioner's claim that she is separated from her husband, they continue to live under one roof. The house they live in is on the same property where Petitioner intends to operate a family day care home. The foregoing facts, among others, were set forth in the Respondent's final investigative report, Florida Protective Services System Abuse Report Number 92-007405. On April 22, 1992, the Respondent sent a certified letter to Petitioner informing her that the investigative report had been classified as proposed confirmed, that she had the right to request that Respondent amend or expunge the report, and that any such request would be considered only if received by Respondent within sixty days of her receipt of the April 22, 1992 letter. The letter contained the following language: If you do nothing, your right to appeal the classification of the report will be completely barred. By not choosing [to ask for amendment or expungement], this report will automatically be classified as CONFIRMED. This means that you do not contest the department's right to maintain the report findings as stated, including your identification as a perpetrator. A perpetrator in a confirmed report of abuse, neglect or exploitation may be disqualified from working in certain positions of trust, including working with children, disabled adults or aged persons. (Emphasis supplied). Petitioner signed the acknowledgment of receipt for the April 22, 1992, letter on April 27, 1992. She never requested amendment or expungement of the investigative report. Because neither amendment nor expungement of the report was sought, the confirmed classification became final agency action sixty days after Petitioner's receipt of the letter on April 27, 1992. In other words, the agency action became final on June 26, 1992. No appeal was taken from this action.1 In 1994, the Agency for Health Care Administration granted Petitioner an exemption from disqualification from employment in positions covered by Section 400.512, Florida Statutes. That section discusses the requirement for employment screening, using level 1 standards, for home health agency personnel, persons referred for employment by nurse registries, and persons employed by sitter, companion, or homemaker services registered under Section 400.509, Florida Statutes. The record does not indicate whether the Agency for Health Care Administration conducted an evidentiary hearing before making its decision to grant Petitioner the exemption.
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 denying the application of Petitioner Patricia Shell to operate a registered family day care home. DONE AND ENTERED this 2nd day of November, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998.
