The Issue Whether the decision of the Department of Children and Family Services (Respondent) to revoke the license of Martha Taylor (Petitioner) to operate a large family child care home is appropriate.
Findings Of Fact Petitioner is licensed to operate a large family day care home, located at 14019 219th Lane, Live Oak, Florida. Her license to provide child care dates from 1998. Jimmie P. Taylor is Petitioner's husband. He lives in the home where Petitioner operates the large family day care facility. Taylor is disabled and does not work outside the home. He is home during the day and has unsupervised access to the children in the large family child care home. On June 3, 2002, Respondent's protective services investigator contacted Deputy Sheriff Wayne Musgrove of the Suwannee County Sheriff's Department. The investigator had received an anonymous report that Petitioner's husband was the perpetrator of a verified report of child abuse. On June 4, 2002, Musgrove interviewed Taylor. Petitioner's husband admitted that in 1987, while Petitioner and her daughter were living in his house in Pinellas County, Florida, he had fondled Petitioner's then 16-year-old daughter in her genital area and that the daughter had fondled his genital area and "masturbated him." He and Petitioner were not married at the time. While the investigation in 1987 resulted in a confirmed report of child abuse, naming Taylor as perpetrator, no other legal consequences befell Taylor because Petitioner's daughter recanted her previous admissions in a circuit court proceeding regarding the matter. Later Taylor and Petitioner's daughter received counseling and today, according to Petitioner and Taylor, enjoy a normal relationship. Respondent's policy is never to license an individual to conduct a family day care business where an abuse perpetrator resides in the same home. Other than denying licensure, Respondent has no means to lessen or remove a threat to children in such a situation since unsupervised contact by such a person with children in the home is possible. In fact, Petitioner would not have received a license in 1998 had Respondent's representatives known about the 1987 confirmed report.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered confirming the revocation of Petitioner's license to operate a large family child care home. DONE AND ENTERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida. DON W. 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 4th day of November, 2002. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Martha R. Taylor Country Air Childcare Home 14019 219th Lane Live Oak, Florida 32060-5336 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 Whether the Respondents' foster care license should be revoked.
Findings Of Fact At all times material to this matter, the Respondents were licensed as a foster home. During the course of such licensure, a minor child, M.A.G., was placed within Respondents' home. It was Respondent, Bertha Sosa's intention to adopt M.A.G. and her minor brother who was also placed with Respondents. Respondents were approved for licensure as foster parents through a private company. Such company was a third party screening agent used by the Department to process foster home applicants. For reasons unknown, such company did not obtain Respondents' signature to or agreement for certain provisions which are required for licensure. For example, all foster home licensees are required to execute service agreements. No such agreement has been located for Respondents. Pertinent to the service agreements are requirements regarding discipline which may be utilized by foster care licensees. In this instance, the discipline policy agreement prohibits: hitting a child with any object; slapping, smacking, whipping, washing mouth out with soap, or any other form of physical discipline; and humiliating or degrading punishment. While the Respondents do not acknowledge that they executed such agreements, it is undisputed that the failure to do so would result in the denial of initial licensure. The only reason Respondents sought initial licensure was to be able to adopt children. They were not then, and were not at the time of the hearing, interested in foster care. The foster care program was the vehicle they chose to be able to adopt. M.A.G. has a history of physical and sexual abuse. It is not uncommon for children with such history to exhibit inappropriate behaviors. Such behavior may include, as described by Mrs. Sosa, "humping." Also, M.A.G. had difficulty with telling lies. Mrs. Sosa admitted that when M.A.G. exhibited inappropriate sexual behavior, she would force the child into a cold shower. Mrs. Sosa admitted that when M.A.G. lied, she would wash her mouth with soap. On or about March 11, 1996, an investigation of abuse allegations began regarding M.A.G. and the Respondent, Juan Sosa. M.A.G. alleged that while Mrs. Sosa was out of the home, Mr. Sosa hit her several times with a broomstick. According to M.A.G., such conduct was the result of M.A.G.'s disobedience and disruptive behavior which culminated in discipline. Bruises consistent with a blunt instrument were observed on M.A.G.'s legs and arm. M.A.G. bragged that she could withstand, or feel no, pain. The bruises were photographed within two days of the alleged incident. Mr. Sosa denied inflicting the injuries sustained by M.A.G.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Children and Families enter a final order affirming the revocation of Respondents' foster care license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of February, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997. COPIES FURNISHED: Colleen Farnsworth Assistant District Legal Counsel Department of Children and Families 401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128 Lee Marks, Esquire 757 41st Street Miami Beach, Florida 33140 Gregory D. Venz Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Coran General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent proved by clear and convincing evidence the allegations contained in its August 27, 2004, letter denying Petitioner's licensure renewal application.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; exhibits admitted into evidence; stipulations and arguments of the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2004); and the record complied herein, the following relevant and material facts are determined: The Parties Respondent is the state agency responsible for licensing, inspecting, and regulating child care facilities, including family day care homes. Respondent is authorized to inspect a family day care home at any time. Regular and routine inspections, as well as inspections resulting from complaints received, are conducted of licensed family day care homes to ascertain whether the home is in compliance with applicable statutes and promulgated rules. Violations (or "non-compliances") of statutes and rules and/or other problematic situations found during inspections are noted on a hand-written inspection report. The inspector takes those noted non-compliance items back to the office and transfers them to Respondent's "Family Child Care Home Inspection Checklist" (Inspection Checklist).1 Inspectors may or may not discuss each non-compliance item with the home operator at the time of the inspection. On those occasions non- compliance items are discussed with the home operator, those items capable of instant correction are corrected before the inspector departs the premises. When appropriate, the Inspection Checklist provides a time frame within which the operator must correct the cited non-compliance item(s) indicated on the Inspection Checklist. The Family Day Care Home Facility Ms. Lanier is the provider and licensed owner of Lanier Family Day Care Home ("the care facility") located at 1039 Madison Avenue, Lakeland, Florida. Ms. Lanier is a tenant at this location, and Angela Lisbon and/or her relatives are the landlord. The Inspections and Cited Violations Tim Graddy conducted a re-licensure inspection of the care facility on August 7, 2003. Re-licensure inspections are conducted when the family child care owner's current license is about to expire, and the owner's application for re-licensure has been filed. The non-compliance items recorded on the Inspection Checklist were: operator's training in first aid not current, operator's CPR training not current, litter (foam cups) in the children play area, access to a road and a four-foot fence was "not provided"--the gate needed repair, floor mats not covered with impermeable surface, evidence of rodents/vermin in the home, one broken window needs replacement, no operative landline telephone available-only cellular telephone available, and supplies missing from first aid kit. At the time of Mr. Graddy's re-inspection on August 18, 2003, all non-compliance items recorded on the Inspection Checklist dated August 7, 2003, had been addressed and corrected by Ms. Lanier, but for the vermin infestation. However, Ms. Lanier's request of her landlord to exterminate the property to address the reoccurring problem of vermin infestation had occurred. On March 31, 2004, Nianza Green, another inspector, completed a routine child care licensing inspection of the child care facility. The non-compliance items noted by Ms. Green on the Inspection Checklist were: unsafe storage of materials dangerous to children was observed in that cleaning supplies were in an unlocked cabinet and in the bathroom; water hose, dirty towels, and some mops on playground--play areas in home not clean; and evidence of rodents/vermin in home--"most [sic] have professional pest control before next visit. Copy of inspection to be faxed or mailed to licensing office"; all parts of the home and premises including furnishings and equipment were not kept clean and sanitary; all parts of the home and premises including equipment, furnishings and plumbing were not kept in orderly condition; meals and snacks supplied by the operator were not of a quantity and/or quality to meet the daily nutritional needs of the children; soiled items were not disposed of in a plastic lined, securely covered container; potty chairs were not cleaned and sanitized after each use; diaper changing surface was not cleaned with a sanitizing solution after each use--used as a storage, cords and other harmful items on shelves of changing table; first aid kit missing some supplies; monthly fire drills not conducted; written record of fire drills not completed; operator did not have record of drills for the past six months; and neither DH Form 680, Certification of Immunization, nor DH Form 681, Religious Exemption from Immunization, was on file for child(ren). On April 29, 2004, Mr. Graddy conducted a routine inspection of the care facility. Mr. Graddy listed the following non-compliance items on the Inspection Checklist: unsafe storage of materials dangerous to children was observed in that disinfectant was left on lower shelf of changing table, children in the outdoor play space had access to a trafficked road/street, and fencing a minimum of four feet in height was not provided--top rail of fence broken in front corner of fence, and evidence of rodents/vermin--live bugs observed in kitchen. On August 11, 2004, Mr. Graddy conducted a re-licensure inspection of the care facility and listed the following non- compliance items on the Inspection Checklist: front gate is not in good repair and does not close properly, live bugs seen in kitchen, loose pieces of ceramic title in kitchen, no operable smoke detector, up-to-date and age-appropriate immunization record missing, and DH Form 3040 not available. On May 6, 2004, by certified mail, Respondent issued an "Intent to Impose Administrative Action" letter, citing that repeated violations were revealed during four inspections conducted on August 7, 2003; August 18, 2003; March 31, 2004; and April 29, 2004. For those repeated violations, Respondent levied a $330 fine.2 Respondent's Cross-Examination re: Inspection Checklist Regarding his August 7, 2003, inspection, Mr. Graddy acknowledged that the inspection report indicated no children were present during the inspection, and, thus, no children were in any immediate danger as a result of the cited non- compliances. The cited non-compliance, fence was "not provided," was, in fact, the gate itself closed but the latch did not close properly. Therefore, no children were in immediate danger. Mr. Graddy acknowledged that the August 18, 2003, re- inspection Inspection Checklist listed a non-compliance item contained in the August 7, 2003, Inspection Checklist, and that the August 7, 2003, non-compliance items had been corrected, but for the vermin infestation. Mr. Graddy was informed by Ms. Lanier that the exterminator (landlord) had been contacted and that he/she would exterminate the care facility. No children were present at the care facility during the August 18, 2003, inspection and, therefore, were not subjected to any harm or immediate danger. Ms. Green acknowledged that her March 31, 2004, inspection did not accurately reflect the conditions of the daycare. Specifically, she described the non-compliance item as the property was "cluttered up"; yet, she failed to describe in the inspection report what she meant by that term. Ms. Green's report indicated that the potty chair was not cleaned after each use; however, upon cross-examination, Ms. Green admitted that she never saw the potty chair being used by the one child in the care facility at the time of her inspection. Likewise, she reported that the diaper changing table surface was not cleaned after each use although she never saw the diaper changing table being used and had no idea whether the allegation had a basis in fact. Ms. Green's Inspection Checklist noted, "[t]he center was not stocked with adequate supplies of food," but she never checked the food cabinets and other storage areas. Ms. Green testified that a bucket was present outside the facility and presented a hazard to children, but she did not note this particular non-compliance on her Inspection Checklist. Ms. Green was unable to confirm that Ms. Lanier was even aware of the "bucket" non-compliance. Ms. Green's Inspection Checklist noted fire drills "had not" been conducted, when, in fact, she was fully aware that fire drills had been conducted on a monthly basis. Ms. Green knew the approved capacity of the care facility was ten children, but only one child was present during her inspection. She could not articulate whether the "missing" immunization records were missing for a particular child or children, if any. After her walk-through, Ms. Green spent little time in the care facility and chose instead to "work" (list her non- compliance items) in her car because she "was concerned about bugs" she believed to have been in the facility might adversely affect her computer. When asked if she advised or discussed with Ms. Lanier her problems and concerns, Ms. Green stated that her job was to "inform the supervisor of the inspecting." At the time of this inspection, Ms. Green had worked as an inspector for only three months. Regarding the April 29, 2004, inspection, Mr. Graddy noted one child present and that child "did not have access to disinfectant near the changing table." His notation, the "top rail of the fence broken in the far corner," was not a repeated violation of an existing problem previously noted. Mr. Graddy also testified that any gaps that existed in the fence were not in sections of the fence less than the required four feet height; therefore, no children were placed at risk or were endangered in any manner by the alleged condition of the fence. Regarding "vermin in the facility," Mr. Graddy acknowledged that he only saw "more than two," acknowledging more than two was not "infestation." Regarding the August 11, 2004, inspection, Mr. Graddy testified that his notation, "the fence [gate] would not lock," on the Inspection Checklist was made without him actually attempting to lock the gate, and, thus, he acknowledged his notation was speculation. He added that this particular problem was different from prior fence problems and did not constitute a repeat violation. The "broken tile" problem noted on this Inspection Checklist had not previously existed; likewise, this non-compliance was not a repeat violation. Mr. Gaddy's non-compliance notation, "smoke detector missing," was that in reality the smoke detector was "present," but the battery may have run down. Mr. Graddy gave Ms. Lanier until the next day to correct this problem, but he never checked back for compliance. Likewise, Ms. Lanier contacted the telephone company and had the landline telephone that was present in the care facility activated which corrected the "no landline telephone" non-compliance item. Regarding the medical records for children non- compliance items noted by Mr. Graddy, he did not check whether the missing medical records on file were for the four children present on the day he noted this item or other children who were not present. Thus, he was unable to identify any specific medical records that were missing. According to Mr. Graddy, "he always goes over the inspection report with the provider, gives them a date after which the noted infractions need be corrected." His above self- imposed inspection standard was later qualified by his admission that he did not provide Ms. Lanier an opportunity to correct/comply with non-compliances contained on his Inspection Checklist before declining renewal of her current license number F14PO0266. Immediately after the August 11, 2004, inspection, the Department determined to deny Ms. Lanier's license renewal application request. The $330 fine issued against Ms. Lanier by the Department on May 6, 2004, was based upon five facility inspections that had occurred on August 7, 2003; August 18, 2003; March 31, 2004; April 29, 2004; and August 11, 2004. Ms. Lanier paid the $330 fine on August 26, 2004. The Department accepted and deposited Ms. Lanier's $330 fine despite the obvious fact that the Department had decided to deny Ms. Lanier's pending license renewal application at the time it levied the fine and accepted her $330 payment of the fine. Ms. Lanier's testimony that she paid the $330 fine on August 26, 2004, with the understanding that her license renewal application would be granted, went unchallenged by the Department. On this particular point, the lack of challenge by the Department regarding this ambiguous statement, whether Ms. Lanier's understanding was induced by suggestion or silence or was assumed in the absence of explanation to the contrary by accepting the $330 fine, is resolved in favor of Ms. Lanier. Patricia Hamilton, child care licensing supervisor, did not personally perform inspections of this facility. She compiled the five inspection reports submitted by the inspectors, charted those inspections, and assumed each non- compliance item on each subsequent inspection was a repeated non-compliance item; when, in fact, they were not. Ms. Lanier testified that upon notice of vermin, she contacted her landlord who sprayed for bugs on regular monthly intervals. Ms. Lisbon, landlord's representative, confirmed that Ms. Lanier made more than one request for additional extermination of the property. Ms. Lanier testified that she addressed/corrected non- compliance items identified by the Department's inspector(s) during their several inspections of her facility. Many small items were corrected by the close of business on the day noticed. Items such as floor mats were replaced, foam cups and other debris in play area were removed, food supplies were available in storage in the house (during spring break the kitchen itself was not stocked as it would be during a normal school week), broken window was repaired, smoke detector battery was replaced, and first aid supplies were replenished. The continuous efforts demonstrated by Ms. Lanier evidenced a sincere intent and cooperative desire to comply with the Department's rules and regulations, noted and interpreted by the several inspectors at the time they inspected the facility, to provide a safe and necessary family day care home for working parents in her immediate community. The Department proved that the facility had a reoccurring bug problem. Without more, a "reoccurring bug problem," common in many areas, does not, ipso facto, equate to infestation.3 When noticed, Ms. Lanier did not fail or refuse to address this issue, she secured extermination and, from the property owner, requested monthly treatments thereafter. The Department did not allege nor introduce evidence of any probability that death, serious harm to the health or safety of any person would, could, or had resulted, nor evidence of the severity, the actual or potential harm, and the extent to which Sections 402.301 through 402.319, Florida Statutes (2004), had been violated. There is no evidence of record whatsoever that any child was harmed or evidence that a particular or a combination of specific non-compliance items, not timely corrected, presented a hazard to the children observed in the facility. The Department's post-hearing argument in vague terms such as "understandably concerned" and "were justified in expecting," "did not rehabilitate her or correct her propensity to violate," and "Department justifiably had enough" are statements open to more than one interpretation and does not constitute direct evidence of an objective standard by which to evaluate appropriate conduct or lack thereof.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order issuing to Petitioner a provisional license until the following conditions are met to the satisfaction of Respondent: Petitioner provides documentation that a licensed extermination service has serviced the facility for vermin. Petitioner provides documentation of a quarterly, semi- annually, or monthly service agreement between Petitioner and a licensed extermination service. DONE AND ENTERED this 18th day of April, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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, 2005.
The Issue The issue for disposition in this proceeding is whether Petitioner is entitled to licensure as a family day care home.
Findings Of Fact Petitioner resides in Lakeland, Florida. In the fall of 2002, she applied for a license to operate a family day care home in her residence. In the course of discharging its statutory responsibility of investigating applicants seeking licensure for family day care homes, a representative of Respondent, Gloria Mathews, an experienced child care licensing inspector, visited Petitioner's residence and discovered numerous instances of non- compliance with requirements of Sections 402.301 through 402.319, Florida Statutes (2002), and Florida Administrative Code Chapter 65C-20. Ms. Mathews talked with Petitioner, pointed out the various instances of non-compliance, and made suggestions regarding correcting the various instances of non-compliance. Ms. Mathews anticipated that upon Petitioner’s correcting the areas of non-compliance, Petitioner would notify her and request a re-inspection. She was not contacted by Petitioner for several months. On May 20, 2003, Francis Williams, an employee of Youth and Family Alternatives, a private, not-for-profit agency that contracts with Respondent to provide assistance to individuals seeking family day care licensure, went to Petitioner's home to provide guidance and assistance to Petitioner in her effort to obtain licensure. Ms. Williams determined that several instances of non- compliance continued. In addition, Ms. Williams noted that Petitioner was caring for five non-related children without being licensed and later discovered that a sixth child had gone unsupervised for more that 15 minutes while Petitioner, Ms. Williams, and five children were in the yard noting various non-compliant conditions and discussing required improvements. On July 28, 2003, Ms. Williams again visited Petitioner's home, found discrepancies, noted that Petitioner was caring for non-related children, and, in Petitioner's absence, discovered a substitute caregiver who had not been screened. On August 27, 2003, Ms. Mathews revisited Petitioner's home and discovered that she was not in compliance; she did not have health examination forms for all of the children. Ms. Mathews and Ms. Williams, both having extensive experience in family day care facilities, testified that they did not believe that Petitioner should be licensed based on her continuing disregard for the rules provided for the safety and protection of children. Petitioner had little to offer regarding the failure of her home to qualify due to the various instances of non- compliance and her violation of the prohibition of caring for non-related children without being licensed.
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 Petitioner's application for a family day care home license. DONE AND ENTERED this 26th day of February, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 26th day of February, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Cassandra Napier 1535 Peavy Court Lakeland, Florida 33801 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Petitioners are entitled to renewal of their license to operate a foster care home.
Findings Of Fact Petitioners had been licensed to operate a foster care home for several years prior to April 30, 1997. Each license was for a one-year period and required annual renewal. The last license issued by Respondent to Petitioners was for the period May 1, 1996, through April 30, 1997. On March 31, 1997, Respondent advised Petitioners that it would not renew their foster care license because an abuse investigation found evidence that inappropriate methods of discipline had been used by Maxine Miles on V. B., a foster child who had been placed in their care. Respondent provided Petitioners with information and training before they were initially licensed as foster care parents. As part of the initial training, Petitioners attended a thirty-hour course entitled Model Approach to Partnerships in Parenting (MAPP), which taught that corporal punishment on a foster child by a foster parent was prohibited. Petitioners knew, or should have known, that their use of corporal punishment on a foster child in their care could result in the revocation of their license or the denial of their application to renew their license. On February 14, 1996, Petitioners executed a form styled "Discipline Policy Agreement" which expressly prohibits "hitting a foster child with any object" and also prohibits "slapping, smacking, whipping, washing mouth out with soap, and any other for [sic] of physical discipline." This agreement contained a caveat that failure to comply with the discipline provisions could lead to the closure of a foster home. V. B. is a female born December 7, 1990. In 1992, V. B. was placed as a foster child in the care of the Petitioners. On or about February 14, 1997, Nicole Marshal, a foster care counselor employed by Respondent, and Brenda Boston, her supervisor, visited with V. B. and observed marks that they believed were the results of corporal punishment. These marks included a cut on V. B.'s forehead (which had been stitched) and bruises, in the form of loops, on her arms, back, and legs. They questioned V. B. as to the causes of the cut and bruises. Based on statements made by the child, they immediately thereafter contacted the Florida Abuse Hotline Information System and reported a case of possible child abuse. As a result of that contact, a child abuse investigation was instigated by the Respondent's Child Protective Investigations Unit. This child abuse investigation was conducted by Lulus McQueen, an experienced investigator. Mr. McQueen also observed the cut and the bruises on V. B. and thereafter questioned the child. Based on the physical observations and the statements made by the child, V. B. was removed from the foster care of the Petitioners on February 14, 1997. On February 25, 1997, V. B. was examined by Dr. Walter Lambert, a medical doctor employed as the Medical Director of the Child Protection Team, and by Rita Duval, a registered nurse employed by the Child Protection Team. The cut on V. B.'s forehead and the bruises observed on February 14, 1997, were still visible. Dr. Lambert and Nurse Duval were of the opinion that the bruises were consistent with V. B. having been disciplined with a belt.2 Maxine Miles physically disciplined V. B. by spanking her using an open hand.3 Maxine Miles knew, or should have known, that this form of discipline was prohibited by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the application filed by Larry and Maxine Miles for the renewal of their licenses to operate a foster home be denied. DONE AND ORDERED this 9th day of January, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of January, 1998.
Findings Of Fact Respondent was initially licensed to operate a foster home in 1992. In April 1995, her license was renewed. As part of the licensing process, the Respondent signed documents entitled "Agreement to Provide Substitute Care for Dependent Children" and "Discipline Policy", thereby agreeing to comply with the terms of each document. Both of these documents clearly provide that corporal punishment of a foster child is prohibited. On October 30, 1995, Petitioner notified Respondent by letter of its intent to revoke her foster home license and stated, in pertinent part, as follows: This letter is to advise you that your Foster Home license is being revoked, effective November 1, 1995. This decision has been made based on our past concerns about inappropriate child-parent visits, the recent complaint about use of physical discipline, and the altercation on 09/18/95 between you and Foster Parent Veronica King. 1/ At the times pertinent to this proceeding, Respondent provided foster care for three teenage girls under the age of 18 years. On September 29, 1995, Petitioner's abuse registry received a report that Respondent had been physically and verbally abusive to the children in her foster care. The report included allegations that Respondent had hit and knocked down one of the girls in her foster care and that she attempted to return the girl to her natural mother, who had abused her daughter in the past. In response to that report, Petitioner removed the three girls from Respondent's foster care and began an investigation of the allegations. As part of that investigation, Respondent and each of the three girls were interviewed by employees of the Petitioner with appropriate training. The three girls who had been in Respondent's foster care made statements to these employees pertaining to their treatment by Respondent. These statements are hearsay that cannot be used as the sole basis for a finding of fact in this proceeding. 2/ In her interview, Respondent denied that she physically abused her foster children, but she admitted that she intentionally pushed one of the girls to the ground. Respondent violated Petitioner's discipline policy by pushing this girl to the ground. Respondent denied that she threatened to return one of the girls to the girl's abusive mother. Instead, she testified that she arranged for this girl to visit with the abusive mother. There was no competent evidence to dispute Respondent's testimony. Respondent conceded that she talked firmly to the three girls, but she denied that she verbally abused them. There was no competent evidence to dispute Respondent's testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that revokes Respondent's foster home license. DONE AND ENTERED this 2nd day of October, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1996.
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 issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family daycare home should be suspended based upon the Petitioner's husband's plea of nolo contendere to a disqualifying second degree felony.
Findings Of Fact The Petitioner, Sislyn Gonsalves, has operated a family daycare home at times pertinent hereto, including in 2005 up through the time of the hearing, pursuant to license number F12V00010. The family daycare home is located at 2820 Lake Helen Osteen Road, Deltona, Volusia County, Florida. The Petitioner and her husband Clayton A. Gonsalves have had repeated disciplinary problems with their 13 year old son, K. G. K. G. had been repeatedly in trouble at school and may have been involved in an incident involving a theft, of which his parents became aware. On or about April 16, 2005, an incident occurred in the Petitioner's home. The Petitioner's husband Clayton Gonsalves and the Petitioner were trying to leave for church that morning and to persuade their son K. G. to attend church with them. An argument between the son and Mr. Gonsalves ensued. During the incident Mr. Gonsalves picked- up a short piece of light weight PVC pipe, approximately three feet by three quarter's of an inch, and struck his son several times on the left shoulder and the right hand. The persuasive evidence in this case is that the blows with the light weight PVC pipe did not leave marks. The son, K. G., being angry and upset at the time, abruptly left the family premises. The Petitioner and her husband and other child thereupon preceded to attend church. Later that day, after the incident had apparently been reported to the police, the police arrested Mr. Gonsalves and charged him as having committed child abuse. On or about May 11, 2005, Mr. Gonsalves entered a plea of nolo contendere on a charge of aggravated child abuse, which is a second degree felony. This resulted from the incident described above. As a result of that plea Mr. Gonsalves was sentenced to a term of three years of probation, and adjucation was withheld. As a condition of his probation he was ordered to have "no violent contact" with the victim, K. G., and to "comply with the Department of Children and Family's conditions and case plans." Mr. Gonsalves works in the State of New York as a plumber. He returns to his family residence, to be with his family, whenever possible, between jobs. He resides there with the Petitioner and their children at such times. He is often present in the family residence while the Petitioner is providing daycare for other children and often assists her in providing care for the children. The unrefuted, persuasive evidence adduced by the Petitioner through her testimony and that of her witnesses establishes that she and her husband are loving parents who do not maintain an abusive home. They treat their own children and the children they provide daycare for, as clients, in a loving, responsible and positive way. The Petitioner is in the process of earning her college degree in Early Childhood Education and desires to continue in the business of providing daycare. The lack of an abusive climate in the home is borne out by the fact that the Petitioner's and Mr. Gonsalves's children are in the gifted program in school, and by the fact that K. G.'s grades and scholastic standing at school have marketedly improved since the incident in question. The Petitioner's witnesses, particularly her mother, described Mr. Gonsalves as a loving husband and father who does not commit abuse, who does not drink, smoke or abuse his wife or children. Witness Ayallo, the agency's Licensing Inspector, established that the Petitioner's family daycare home is always in compliance with relevant regulatory rules and statutes, and he corroborated the Petitioner's testimony concerning the history of disciplinary problems caused by her son. Witness Surgine, the Agency's Licensing Specialist established that the Agency only wanted to suspend the licensure because of the fact that the husband, Mr. Gonsalves, would, on occasion, be present in the home when child clients are present. The Agency did not feel that the incident justified a revocation of license. This is an unfortunate, isolated incident. The persuasive evidence of record shows that Mr. Gonsalves is not an abuser of his children, the children of others or his wife, the Petitioner. The Petitioner is operating her facility as an exemplary family daycare home and desires to continue to do so. Even though she and her family are enduring rather straitened financial circumstances, she is successfully pursuing a college degree in Early Childhood Education. The testimony of Ms. Corchado, whose son has been cared for by the Petitioner in excess of three and one-half years, corroborates the exemplary record and caring atmosphere maintained by the Petitioner in operation of her family daycare home. Ms. Corchado has tried many daycare facilities and believes that the Petitioner's is the best one she found in terms of providing a loving, positive, environment for her son. Her son "adores the Petitioner and her family" and has become very close to them, even attending church with them on occasion. The Petitioner helps her son with his school work and Ms. Corchado has never observed or learned of any abuse occurring in the home. The incident which occurred with Mr. Gonsalves and his son is clearly an isolated unfortunate occurrence. It was deeply regretted by all concerned even before the Agency Respondent became aware of it. It is ironic that the Petitioner, who has conducted an exemplary child care facility operation, has been placed at risk for losing her licensure status while other child care facilities licensed by the Respondent with more violations of record which can impinge on the adequate care of children can remain licensed under corrective plans and procedures. The Agency, commendably, has recognized the unjust, automatic operation of the statute at issue herein, in terms of the Petitioner's particular circumstances and incident, by declining to seek revocation of licensure but merely suspension until the issue of Mr. Gonsalves's residence in the daycare facility is resolved. In any event, this was unfortunate effort at child discipline which became a little too heated and went awry. As the Petitioner pithily and eloquently put it, "If you don't discipline your children, they will grow up and the police will do it for you."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services suspending the license of the Petitioner for the above found and concluded reasons but that the suspension be stayed while, under appropriate Department supervision, the Petitioner and Mr. Gonsalves resolve the issue of his residence within the family daycare home location possibility of the licensed daycare home being re-located to another premises or while Mr. Gonsalves acts to secure an exemption (if successful) from the above-referenced disqualifying offense. DONE AND ENTERED this 4th day of January, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 4th day of January, 2006. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sislyn Gonsalves 2820 Lake Helen Osteen Road Deltona, Florida 32738 George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 440 Daytona Beach, Florida 32114-3269
The Issue Should the Petitioner, Nikki Henderson, d/b/a Henderson Family Day Care Home, be granted a license to operate a family day care home pursuant to section 402.313(3), Florida Statutes (2015)1/ because she does not satisfy the screening provisions of sections 402.305(2) and 402.3055?
Findings Of Fact Ms. Henderson is the mother of four children. She has been a good parent, seeing to their education. She volunteers as the minister of music in a church. She has also taken college courses. Ms. Henderson wants to start a family day care center. On September 12, 2014, the Department granted Ms. Henderson an exemption from disqualification from working with children and other vulnerable populations due to a criminal conviction. This means that just over a year before the hearing, the Department determined that Ms. Henderson proved by clear and convincing evidence that she was rehabilitated and should not be disqualified from employment. § 435.07, Fla. Stat. In the exemption process, the Department could consider the person’s history since the disqualifying criminal offense and “any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed.” § 435.07(3)(a) Fla. Stat. A family day care home is an occupied residence, in which child care is regularly provided for payment. The children served under the age of 13 and from at least two unrelated families. § 402.302(8), Fla. Stat. The Department is the licensing authority for family day care homes. It considers an applicant’s criminal history, as well as any reports concerning abuse or neglect maintained in the Department’s statewide database, Florida Safe Families Network (FSFN), formerly known as HomeSafeNet, in licensing decisions. The Department received Ms. Henderson’s completed application to operate a family day care home on June 25, 2015. By letter dated September 2, 2015, and served September 4, 2015, the Department announced its intent to deny the application based upon two verified reports of inadequate supervision of her children and three reports of complaints all closed with “no indicators” or “not substantiated” conclusions. The reports named Ms. Henderson as the caregiver responsible for the children involved. When using either HomeSafeNet or FSN, investigators input information as they collect it. But they do not input all of the information immediately. The information is much more than what the investigators have observed. Most of the information is recitations of statements of others about what the others observed. The FSFN and HomeSafeNet databases contain records of the following reports involving Ms. Henderson: 1999-089863-01 (Ex. C), 2002-136612-01 (Ex. D), 2004-420815-01 (Ex. E), 2005- 323618-01 (Ex. F), and 2012-126218-01 (Ex. G). These are the reports that the Department relies upon to support denying Ms. Henderson a license. The reports set forth activities of the agency’s investigators, stating what they did. What the investigators did was interview people and report what those people said or what they said someone else said. The reports contain very little directly observed by the reporters. The information contained in the reports that the Department relies upon is largely hearsay or hearsay reports of hearsay. The reports consist mostly of summaries of records reviewed by the reporter or summaries of statements by other individuals. They are not reports of information about which the reporter has direct knowledge. The reports do not identify who the investigator obtained the information from. In short all of the statements in Respondent’s Exhibits C through G about anything Ms. Henderson did or did not do are hearsay recitations of statements made to and summarized by the reporters or summaries of documents reviewed. §§ 90.801 & 90.802, Fla. Stat. Hearsay alone cannot support a finding of fact. § 120.57(1)(c), Fla. Stat. The reports also are not competent or persuasive evidence that the assertions in them are accurate. Ms. Henderson disputes the reports. Her live testimony, subject to cross examination, is more persuasive than the words of the reports. The reports do not satisfy the requirements for the business record hearsay exception of section 90.803(6), or the public record exception of section 90.803(8). See, e.g., Lee v. Dep't of HRS, 698 So. 2d 1194, 1200 (Fla. 1997) (investigative report of pregnancy of woman with a disability residing in a state facility not subject to the public record exception). See also, Brooks v. State, 918 So. 2d 181, 193 (Fla. 2005), cert. den., Brooks v. Fla., 547 U.S. 1151, 126 S. Ct. 2294, 164 L. Ed. 2d 820 (2006); M.S. v. Dep't Child. and Fams., 6 So. 3d 102 (Fla. 4th DCA 2009). Application of the hearsay rule is no mere legal technicality. The hearsay rule is one of the oldest and most effective means of ensuring decisions that determine people's lives and fortunes are based on reliable information. Florida's Fifth District Court of Appeal described the importance of the rule as follows: Rules governing the admissibility of hearsay may cause inconvenience and complication in the presentment of evidence[,] but the essence of the hearsay rule is the requirement that testimonial assertions shall be subjected to the test of cross examination. 5 Wigmore on Evidence, § 1362 (Chadbourne Rev. 1974). As stated by Professor Wigmore, the hearsay rule is "that most characteristic rule of the Anglo- American law of evidence -- a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world's methods of procedure." 5 Wigmore on Evidence, at § 1364. Dollar v. State, 685 So. 2d 901, 903 (Fla. 5th DCA 1996). A complaint on July 18, 1999, triggered the investigation resulting in Report 1999-089863-01 (update date November 16, 2000). (Dept. Ex. C). The report summarizes the investigation of an allegation that Ms. Henderson (then Nikki Stanley) “left [her child] Deuteronomy in his carrier sear [sic] on the steps of the alleged Dad’s home,” knocked on the door and drove away. The allegations continue that the adults were inside and that the alleged father’s mother found the child on the steps. Ms. Stanley, who testified and was cross-examined at the hearing, went with Ms. Henderson to leave the child at the father’s home. Ms. Stanley personally placed the child in the hands of an adult at the house. Ms. Stanley and Ms. Henderson also delivered Pampers and milk. Ms. Henderson’s credible and consistent position has always been that she did not leave the child unattended at the house where the child’s father lived. The testimony of Ms. Stanley and Ms. Henderson is consistent with some statements in the report and more credible and persuasive than the allegations recited in the report. The Department closed the investigation with verified findings of inadequate supervision and no indicators of physical injury. The Department did not provide Ms. Henderson an opportunity for a hearing to contest the findings. The Department filed a dependency petition against Ms. Henderson because of the report. It gave her a case plan, requiring the provision of protective services supervision by the Department. The Department did not remove the child from Ms. Henderson’s care. The Department did not prove by the preponderance of the evidence that Ms. Henderson left Deuteronomy alone on the steps on July 18, 1995. She did not. Report number 2002-136612-01 chronicles the investigation of allegations received on August 23, 2002, described as “Physical Injury,” Substance Exposed Child,” “Inadequate Supervision,” and “Environmental Hazards.” (Dept. Ex. D). The report is a confusing document and contains no information about environmental hazards or a child being exposed to a substance. It is not a credible report of anything involving alleged harmful conduct by Ms. Henderson or conduct endangering a child. In fact although the case started as an investigation of her, it ended with the suspected father of the child identified as the possible perpetrator, not Ms. Henderson. Representative paragraphs are reproduced here. ALLEGATION NARRATIVE: ON A RECENT NIGHT, THE MOTHER BROKE WINDOWS AND CAUSED PROBLEMS AT THE HOME OF THE ALLEGED PATERNAL GRANDMOTHER, BARBARA BROWN, WHERE GEORGE [the child apparently involved] WAS AT THE TIME. THIS OCCURRED ABOUT 3:00 A.M. MOTHER HAD CALLED THE ALLEGED FATHER, ALVIN WALLACE (MS. BROWN’S SON/NO DNA TEST DONE YET TO DETERMINE PATERNITY), EARLIER IN THE EVENING. SHE TOLD HIM SHE WAS GOING TO JAIL, AND SHE TOLD HIM TO GET GEORGE, WHICH HE DID AT 3:00 A.M., MOTHER SHOWED UP WANTING GEORGE. LAW ENFORCEMENT WERE CALLED. THEY ADVISED THE MATERNAL GRANDMOTHER, SHARON STANLEY, TO LET MR WALLCE AND MS. BROWN KEEP GEORGE. MOTHER AND GEORGE LIVE AT ADDRESS A WITH THE MATERNAL GRANDMOTHER, ABOUT WHOM CONCERN WAS EXPRESSED BECAUSE SHE HAS SEIZURES. PATERNAL GRANDMOTHER HAS NOW GOTTEN AN INJUNCTION AGAINST MOTHER. MOTHER DID NOT HAVE TO GO TO JAIL. ITS UNKNOWN WHY SHE THOUGHT SHE HAD TO GO. MOTHER’S LIFESTYLE AND BEHAVIOR ARE SAID TO BE ““QUESTIONABLE.”” MS. BROWN AND MR. WALLACE LIVE AT ADDRESS B. 24 HOUR. ALLEGATION NARRATIVE: RIGHT NOW, GEORGE IS AT THE HOME OF THE ALLEGED PATERNAL GRANDMOTHER, BARBARA BROWN, ADDRESS B. NO DNA TEST HAS BEEN DONE. SO IT HAS NOT BEEN DETERMINED TH[A]T MS. BROWN’S SON IS GEORGE’S FATHER. GEORGE SPENT THE WEEKEND AT MS. BROWN’S HOME, AND MS. BROWN NOW REFUSES TO GIVE GEORGE BACK TO THE MATERNAL GRANDMOTHER. ALLEGATION NARRATIVE: MR. WALLACE SHOOK GEORGE TODAY AROUND 7 PM. MR. WALLACE WAS OUTSIDE WITH GEORGE. GEORGE WAS CRYING. MR. WALLACE THREW GEORGE INO THE HAIR [SIC] AND SHOOK HIM. IT IS UNKNOWN IF GEORGE SUFFERED ANY INJURIES AFTER BEING SHOOK. MR. WALLACE HAS A HISTORY OF SELLING AND USING COCAINE AND MARIJUANA. HE WILL SELL THE DRUGS FROM HIS HOME AND ON THE STREETS. IMMEDIATE. INVESTIGATIVE DECISION SUMMARY: BACKGROUND INFORMATI0N: THE FAMILY HAS ONE PRIOR FROM 1999 WHERE PROTECTIVE SERVICES WERE INVOLVED DUE TO VERIFIED INADEQUATE SUPERVISION. ADJUDICATION WAS WITHELD [sic]. THE MOTHER AND HER TWO CHILDREN INVOLVED IN THE PRIOR LIVE WITH THE GRANDPARENTS AND THE NEW BABY IN LAKELAND. PS CLOSED IN 2001. THE MOTHER HAS A CRIMINAL HISTORY THAT INCLUDES A BATTERY CHARGE FROM 2002. CONCERNS OVER THE ALLEGED FATHER ALVIN WALLACE. DUALING [sic] INJUNCTIONS SUBJECT INFORMATION: THE CASE APPEARS TO BE CUSTODY RELATED. THERE WERE CONCERNS OVER THE ALLEGED FATHER ALVIN WALLACE. DUALING [sic] INJUNCTIONS BETWEEN MOM AND PROSPECTIVE FATHER WERE FILED AND BOTH DISPUTED OVER THE CUSTODY OF THE CHILD. JUDGE SMITH GRANTED AN INJUNCTION AGAINST THE ALLEGED FATHER AND GAVE CUSTODY TO THE MOTHER. LATER, THE RESULTS OF THE DNA SCREEN SHOWED THAT MR. WALLACE WAS NOT THE FATHER. HE IS NO LONGER A THREAT AND DOES NOT HAVE CONTACT WITH THE BABY. SHAKING OF CHILD ALLEGATION WAS BOGUS. LEGAL CONTACT: JUDGE SMITH OF D/V COURT GAVE CUSTODY TO MOM AND GRANTED INJUNCTION AGAINT MR. WALLACE WHO TURNED OUT NOT TO BE THE FATHER AFTER A DNA TEST. FAMILY AND COMMUNITY SUPPORT: MOM HAS DV INJUNCTION AND FAMILY SUPPORTS. SERVICES AND REFERRALS: I.E NOTIFIED. CASE APPEARS TO HAVE BEEN CUSTODY RELATED. MR. WALLACE WAS LATER PROVED NOT TO BE THE FATHER AND NO LONGER HAS ANY CONTACT OR RIGHTS TO THE CHILD WHO LIVES WITH THE MOTHER, GP’S AND OTHER SIBLINGS. HE IS NO LONGER A POSSIBLE THREAT TO THE CHILD. CLOSE CASE AS BACKLOG. CONVERTED ICSA SAFETY ASSESSMENT 06/15/2006 *ICSA INITIAL OVERALL SAFETY ASSESSMENT* RISK IS LOW. ALLEGED PERP [Mr. Wallace] WAS DETERMINED NOT TO BE THE DAD AND IS NO LONGER HAVING CONTACT WITH CHLD. *ICSA UPDATED OVERALL SAFETY ASSESSMENT* RISK IS LOW: ALLEGED PERP WAS DETERMINED NOT TO BE THE DAD AND IS NO LONGER HAVING CONTACT WITH CHILD. The Department closed the investigation with no indicators for any of the alleged mistreatment. The report did not conclude that Ms. Henderson acted improperly or did not act when she should have. The Department initiated case number 2004-420815-01 on September 29, 2004, in response to an allegation that Ms. Henderson was leaving her four children at home alone at night. (Dept. Ex. E). At the conclusion of the investigation, the Department determined that there were no indicators of inadequate supervision. The summary concluded: “The Mother has made adequate arrangements for the children while she works thus not causing a concern for safety and/or permanency.” On February 8, 2005, the Department received a complaint alleging that Ms. Henderson was leaving the children at home alone and coaching them to tell people that she was home, but asleep. The Department started an investigation resulting in report number 2005-323618-01 (Dept. Ex. F). The Department closed this investigation with verified findings of inadequate supervision. It filed another dependency petition to obtain court-ordered protective services supervision. The court ordered a case plan that included a requirement to complete a parenting program. During this open case, Ms. Henderson demonstrated some lack of responsiveness to the Department’s preferred eight-week in-home parenting program. She took a one-day program at the Polk County Courthouse instead. The court, whose order Ms. Henderson was to comply with, accepted this class as satisfying the parenting program, over the Department’s objection. Basically the Department is second-guessing the court’s ruling and treating Ms. Henderson as if she had not met the court’s requirements when she did. On May 31, 2012, Ms. Henderson reported to the Department that a school intern inappropriately touched the breasts of Ms. Henderson’s 14-year old daughter. This initiated report number 2012-126218-01. (Dept. Ex. G). Ms. Henderson was not the subject of the investigation. The intern was. Ms. Ebrahimi was the child protective investigator supervisor at the time of this report. She has personal knowledge of some of the facts in that report and testified about them. Ms. Henderson was very upset about the incident. She acted vigorously and promptly to protect her daughter. Ms. Henderson immediately picked up her daughter and reported the incident to the Department and the school. She insisted that the school remove her daughter from the intern’s class. She also arranged for her daughter to attend a different school the next year. Only one week was left in the current school year. She obtained a temporary injunction against the intern. Ms. Henderson also sought to obtain a permanent injunction to protect her daughter. Ms. Henderson did everything lawful that a loving protective parent could do for her child. The day after the incident Ms. Henderson spoke to Detective Rose. He told Ms. Henderson that the authorities did not perceive sufficient evidence to take actions to protect her daughter, including obtaining an injunction. Even Ms. Ebrahimi concedes that Ms. Henderson was very cooperative with the Department and protective of her child. Ms. Ebrahimi faults Ms. Henderson for, in Ms. Ebrahimi’s view, not following through on the permanent injunction and failing to return phone calls from the Department’s investigator. Ms. Henderson did not receive calls or messages from the investigator. Ms. Ebrahimi does not have personal knowledge of whether the investigator called Ms. Henderson. Ms. Henderson’s testimony about not receiving calls from the investigator is more credible and persuasive than the cryptic notes in the report. Ms. Henderson’s actions were entirely reasonable and protective of her daughter. A person in authority told her that she could not obtain an injunction. So she took no further actions on that front. Ms. Henderson acted immediately to have the offender removed from contact with her child. She arranged for her child to be transferred to a different school. The Department’s investigative summary itself shows the reasonableness of Ms. Henderson’s actions and the difficult circumstances she faced, including a lack of support from responsible authorities, when her 14-year-old daughter reported an intern fondling her breasts at school. The report says: The child states that the intern touched her breast. She disclosed that she told the teacher who did nothing about it. Stated she also told her mother who made a report to law enforcement. The intern is no longer in the child’s classroom but is still at the school per the mother. CPI to update as more information is received. UPDATE: Risk low. Several statements in the report substantiate Ms. Henderson’s recall of events and buttress the determination that she is more persuasive than the document. It also demonstrates that the alleged calls were for the bureaucratic process of closing the case, not furthering the investigation to protect Ms. Henderson’s daughter. In addition, it is difficult to imagine what additional information the DCF investigator could obtain from Ms. Henderson. She had already told DCF all she knew about the assault. The summary also supports Ms. Henderson’s testimony that a police officer told her the police would not pursue the case. It states: “Other children reportedly also reported witnessing, then recanted to Lakeland Police Detective. Lakeland Police not pursuing further, did not find alleged victim credible.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Children and Families, enter a final order granting the application of Petitioner, Niki Henderson d/b/a Henderson Family Day Care Home, to operate a family day care home. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2016.
The Issue The issue is whether revocation of the foster home care license of Petitioner was properly based upon his abuse of a child in his care.
Findings Of Fact Under Sections 409.175(3)(a) and 409.175(4)(a), Florida Statutes, the Department of Children and Family Services is the state agency responsible for licensing and monitoring foster care homes. Under Section 409.175(8), Florida Statutes, the Department has authority to deny, suspend, or revoke a foster home license. At all times material to this case, Petitioner, Steven A. Schick, was a licensed foster care parent in Pasco County, Florida. C. B., a 13-year-old male, was a foster child in Petitioner's care from late November 1999 until his removal from Petitioner's foster care home on or about January 6, 2000, by the Department of Children and Family Services. At the final hearing, and after questioning, C. B. was found competent to testify. On more than one occasion, usually late at night, Petitioner entered C. B.'s room and fondled his genitals. On at least one of these late night visits, C. B. felt what he believed to be Petitioner's mouth touching his genitals. C. B. explained that initially he was afraid to report these incidents to adults for fear that they would not believe him. He did not report these incidents to the Department because he feared a return to the Personal Enrichment through the Mental Health Services (PEMHS) program facility. C. B. is presently taking Aderol, a depression medicine, and he was taking his medication during the late night visits to his room by Petitioner. C. B. told his friend, A. B., and A. B.'s mother about Petitioner's late night visits on or about January 6, 2000. An abuse report was called into the Department, who called the police. The police arrived at Petitioner's residence approximately 11:00 p.m. on January 6, 2000, interviewed C. B., A. B., A. B.'s mother, and the Petitioner. C. B.'s testimony did not vary significantly from the testimony of Deputy Bradford Seltman, the first police officer on the scene, or from the allegations contained in the Abuse Report #2000-3014. Petitioner denied the allegations made by C. B. during C. B.'s seven-week stay in Petitioner's home as a foster child. Petitioner offered uncorroborated speculation on C. B.'s motive in making the abuse allegations, to wit: C. B. became resentful after he became aware that Petitioner was going to adopt another boy; C. B. had a fight at school resulting in an in-school suspension; C. B. and A. B. having been caught viewing an internet sex site and ordered by Petitioner to stop and go to bed; C. B. wanted to spend the night at A. B.'s house and when ordered by Petitioner to come home he became angry, and C. B., having many opportunities, did not mention those allegations to any adults prior to January 6, 2000. C. B., in his testimony, admitted the truth of the several incidents testified to by Petitioner. C. B. refuted, however, Petitioner's assertion that those incidents were the reason he told A. B. and A. B.'s mother of the sexual encounters that had occurred over the seven-week period of time he was in Petitioner's care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services, enter a Final Order revoking the foster care license of Petitioner, Steven A. Schick. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 20th day of April, 2001. COPIES FURNISHED: Keith J. Ganobsik, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Nicholas L. Ottaviano, Esquire Sharp, Ottaviano, & Barnes 24710 U.S. Highway 19 North, Suite 104 Clearwater, Florida 33763 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 204B Tallahassee, Florida 32399-0700
