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.
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 The issues in this case are: (a) Whether Petitioner's license as a family day care home should be renewed; (b) Whether Petitioner was required to list her son, Stephen Randall, as a household member on her annual registration application for a family day care home for 2000 and 2001; and (c) Whether Stephen Randall was a member of Petitioner's household at any time in 2000 and 2001.
Findings Of Fact Based on the testimony and demeanor of the witnesses and the documentary evidence presented, the following findings of fact are made: Petitioner's application for license for a family day care home dated October 20, 1997, was received by Respondent on November 20, 1997. Listed among the "household members" on the application was Petitioner's son, Stephen H. Randall, whose date of birth is March 28, 1981. On January 10, 1998, Petitioner submitted her application for registration for a family day care home; the application was received by Respondent on January 14, 1998. Stephen Randall is also listed as a household member on this application. On January 15, 1998, Respondent wrote a letter to Petitioner acknowledging her desire to withdraw her application for license as a family day care home. On February 18, 1998, Petitioner was registered as a family day care home for one year effective February 28, 1998. The letter advised: To maintain your registration in accordance with Section 402.313, Florida Statutes, you must do the following: * * * (3) Send in background screening forms including fingerprints for household members who become 18 years of age, or for adults who move into your home, or when your substitute changes and has not been screened. On October 26, 1998, Petitioner forwarded a renewal application for registration as a family day care home which listed Stephen Randall as a "household member." As a result of a December 9, 1998, inspection by Respondent, it was determined that an adult who had not been screened was living in the registered day care home and, therefore, Petitioner was notified that screening was to be accomplished "ASAP." On January 12, 1999, Respondent sent Petitioner a Certified Letter reminding her that "Adult members residing in the family day care home must go through a background screening process in accordance with Florida Statutes, " On January 28, 1999, Petitioner telephoned Respondent indicating that she "changed her mind about daycare." This telephone call was followed by a letter from Respondent to Petitioner dated January 29, 1999, indicating, "Per your request January 28, 1999, we have withdrawn your Family Day Care license application and closed your registration effective this date." On April 9, 1999, Petitioner submitted an original registration application which listed her 18-year-old son, Stephen Randall, as living in the home which was to become the registered family day care home. On July 6, 1999, Petitioner, by letter, advised Respondent that "My son Stephen H. Randall is no longer living with me (Maxine Torres)." On July 20, 1999, Respondent mailed Petitioner a letter advising that "The Department of Children & Family Services has registered your Family Day Care Home for one year effective July 30, 1999." The letter also advised Petitioner of the necessity of advising Respondent when unscreened adults move into the home in the same language as contained in paragraph 4, supra. On September 23, 1999, Respondent sent Petitioner a Certified Letter which stated: We have received your letter dated July 7, 1999 in reference to your son, Stephen Randale [sic], moving out of your home. Should he return, he must be background screened within ten (10) days. Please remember that all household members must be screened in accordance with F.S. Section 202.303 and 402.305. Failure to do so in a timely manner may result in administrative action, which could result in a fine, suspension, or revocation. On October 31, 2000, the Circuit Court in and for Orange County, Florida, in Case Number CR-O-00-4737/A adjudicated Stephen Henry Randall, Petitioner's son, guilty of violating the following criminal statutes: Subsections 806.13(1)(b)1, 810.02(3), and 812.014(2)(c)5, Florida Statutes, two of which offenses are felonies, and sentenced him to one day in jail and three years' probation. Stephen Randall had been arrested in April 2000 for the criminal offenses he committed. The offenses occurred at a residence two residences away from Petitioner's home, the registered family day care home. Petitioner submitted an application for re-licensure dated May 14, 2000, in which she was required to disclose the name of "everyone who lives in your home." By signing the application, Petitioner attested that the information on the application was "truthful, correct, and complete." Stephen Randall was not listed as living or residing at Petitioner's home. Respondent's investigators and independent witnesses presented credible testimony indicating that Stephen Randall was residing in Petitioner's residence (the registered day care home) during the calendar year 2000. In particular, an abuse report of an incident in January 2000, indicates that Petitioner reported that she "left her teenage son in the home" purportedly to supervise the children left in Petitioner's care; in June 2000, Petitioner again told an investigator, that if she wasn't there her son, Stephen Randall, her daughter or husband watch the children. In addition, independent witnesses, whose children were at the day care home, reported repeatedly seeing Stephen Randall there. Stephen Randall was living in the residence of Petitioner, which was a registered day care home, during the calendar year 2000 and had not been screened as required by Florida Statutes because Petitioner did not advise Respondent that he had returned and was residing in the home. Respondent investigated two Florida Protective Services abuse hotline complaints against Petitioner and determined the complaints to be well-founded. In both instances, Petitioner failed to properly supervise children left in her care and, as a result, failed to ensure the safety of the children. Independent witnesses confirmed the abuse hotline complaints and presented other complaints, all confirming that Petitioner failed to properly supervise children left in her care and failed to ensure their safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for re-licensure of her family day care home. DONE AND ENTERED this 16th day of May, 2002, in Tallahassee, Leon County, Florida. 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 16th day of May, 2002. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 James Sweeting, III, Esquire 506 West Washington Street Orlando, Florida 32801 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 The issue in this case is whether or not Petitioner's license as a family day care home should be revoked.
Findings Of Fact Based on the testimony and demeanor of the witnesses and the documentary evidence presented, the following findings of fact are made: On November 19, 2001, Petitioner received a letter advising that Respondent "has registered your Family Day Care Home for one year effective November 30, 2001. Your registration number is 07E732." This registration was for Petitioner's residence at 2716 Seabreeze Court, Orlando, Florida 32805. On November 29, 2001, Petitioner advised Respondent of an address change for the registered family day care home. On the same day, November 29, 2001, by a hand-delivered letter, Respondent advised Petitioner: "The Department of Children and Families has been notified of your change of address. Please be advised that registrations for family day care homes are issued exclusively to the address at the time of application. Accordingly, your registration at 2716 Seabreeze Court; Orlando, Florida 32805 is cancelled." On the same day, November 29, 2001, Petitioner submitted an application for registration for 1720 South Rio Grande Avenue, Orlando, Florida 32805. No evidence was presented as to whether or not a registration was granted regarding this application for registration. On January 8, 2002, an incident of alleged child abuse was reported to the Orange County Sheriff's office by the parent of a child placed for day care with Petitioner. This incident was reported to the Florida Protective Services abuse hotline and Respondent by the Orange County Sheriff's Office. An investigation of the abuse complaint determined that Petitioner had disciplined a three-year-old child by striking the child a number of times on the legs, arms, and buttocks with a plastic mini-blind rod approximately two feet in length. Striking the child with the mini-blind rod had caused welts and had broken the skin in places. Petitioner acknowledged using the plastic mini-blind rod to strike the three-year-old child. Credible evidence, some from Petitioner herself, was received that Petitioner physically punished a three-year-old child. On March 18, 2002, as a result of the abuse investigation, Respondent notified Petitioner by Certified Mail, of "Notice of Revocation of Registration." The letter stated: "The purpose of this letter is to advise you that your registration #07E732 issued by the Department of Children and Families effective November 30, 2001 to provide child care services is revoked." (This appears to be a revocation of the registration that was cancelled on November 29, 2001; see paragraph 3, supra).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services' revocation of Petitioner's license as a family day care home is found to be appropriate and be upheld. DONE AND ENTERED this 26th day of August, 2002, in Tallahassee, Leon County, Florida. 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 August, 2002. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Iris Patrice Anderson 1720 South Rio Grande Avenue Orlando, Florida 32805 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 The issue presented in this case is whether Respondents' foster home license should be revoked.
Findings Of Fact Respondents were first licensed as a family foster home in April 1994. As a result of Respondents' obtaining a foster home license, the Department put in their care: M.A1.A and M.Au.A, brother and sister; and, J.H. and L.H., brother and sister. M.Au.A was nine years old and her brother M.A1.A was eight years old. J.H. was eight years old and his sister, L.H., was five years old. J.H. and L.H. were later adopted by their foster parents, Robert and Irene Holmes. J.H. was born September 2, 1991. He was, and is, a very troubled young man. Schizophrenia runs in his biological family and his mother abused chemicals during her pregnancy. He is diagnosed with Attention Deficit-Hyperactivity Disorder (ADHD) and has episodes of violence, aggression, unpredictability, poor impulse control, and agitation. He is likely to be pre-schizophrenic and, given his behavior, could develop full schizophrenia in the future. Even though only diagnosed with ADHD and in addition to stimulant medication prescribed for his ADHD, J.H. takes several psychotropic medications generally prescribed for manic and depressive behavior and other mood disorders. However, these drugs do not seem to fully control his behavior. Because of his aggression and severe behavior problems, J.H. has been involuntarily committed multiple times and has been repeatedly recommended for a residential, therapeutic foster home placement. Unfortunately, for various reasons, the Department has not provided J.H. a residential, therapeutic foster home placement. On October 7, 1999, the Department received an allegation of abuse against Respondents. The allegation involved J.H. The allegations involved alleged favoritism of L.H. over J.H., abandoning J.H. with teachers, emotional abuse, and not wanting him in their home. The Department's investigation, on very tenuous evidence, verified abuse for neglect - abandonment; neglect - failure to protect; abuse - other mental injury; neglect - inadequate supervision; and abuse - confinement/bizarre punishment. The report further found some indication of medical neglect and other physical injury-threatened harm. Because of the abuse report, the Department took L.H. and J.H. into shelter care on October 8, 1999, and filed a dependency action regarding J.H., Case No. 99-628-CJ. Additionally, based on the verified findings of the abuse report, the Department revoked Respondents' foster home license. By Order of the Circuit Court dated July 12, 2000, the dependency action was dismissed for lack of evidence and an utter lack of co-operation by Department's personnel and witnesses during the dependency action. J.H. was returned to Respondents' home and has remained with them to date. L.H. was returned to Respondents' home sometime before her brother's dependency action was concluded. Put simply, at the hearing, none of the allegations of the abuse report or facts supporting the verified findings were supported by the evidence since only uncorroborated hearsay was introduced at the hearing. Moreover, even though the evidence was hearsay, many of the allegations appeared from all the testimony to have been taken out of context and given meanings which were not warranted when their context was known. Significantly, the Department did not call J.H. to testify about any of these allegations. To the contrary, the testimony of various witnesses indicated that Respondents did, in fact, keep a very neat, tidy, and orderly foster household and that J.H. was not abused or neglected. The evidence presented by Respondents and the testimony of their witnesses indicate that J.H. was provided a safe environment. The teachers provided temporary care during the period of time alleged to be when Respondents were neglecting J.H. by being out of town. The witnesses, including the teachers, stated that the plan was that they would care for J.H. until the return of Respondents. Furthermore, there was never any indication that the child was mistreated or neglected or left without care by Mrs. Holmes after returning from a wedding out-of-state. Finally, there was no evidence of noncompliance with any treatment plan, that the multiple involuntary commitments were in any way mentally abusive of J.H., or that the quiet times J.H. needed to calm himself were intended to be time-out punishment or were inappropriate or bizarre punishments of J.H. Because the allegations of abuse were not established, there is no basis on which to revoke Respondents' foster home license. Therefore, Respondents are entitled to their foster home license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Children and Family Services enter a final order not revoking Robert and Irene Holmes' family foster home license. DONE AND ENTERED this 24th day of December, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 2001. COPIES FURNISHED: Keith J. Ganobsik, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Charles P. Vaughn, Esquire 120 North Seminole Avenue Inverness, Florida 34450-4125 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the family day care license of Respondents.
Findings Of Fact Respondent has been registered with the Department as a family home day care provider since September of 2001. A registered family home day care does not have to meet all of the requirements that a licensed day care home must meet. However, the same background screening and training requirements must be met. Registered family day care homes are not inspected as often as licensed homes. Each year, the registered provider must complete a renewal application that, among other things, identifies household members and substitute care-givers. The operator of the home and all household members are required to pass a Level 2 background screening. Additionally, registered family home applicants must pass a 30-hour family day care home training, a five-hour early literacy course, and each year, complete 10 hours of in-service of continuing education. Operators of the registered homes must designate a substitute care provider who is also required to go through the background screening. Ms. Huewitt designated Teresa Clary as her substitute care provider on her 2007, 2008, and 2009 applications. Previous Disciplinary Action On three occasions in the fall of 2008 and on one occasion in February 2009, Respondent was found to be out of compliance with ratio requirements, i.e., caring for more children than allowed. Additionally, in November 2008, the Family Services Counselor from the Department called the home and the phone was answered by one of Ms. Huewitt’s adult daughters. That daughter informed the Family Services Counselor that Ms. Huewitt was not home and would be back shortly. The Department then determined that this violated the substitute care requirement as Teresa Clary was designated as the substitute care provider. As a result, the Department issued an Administrative Complaint on January 12, 2009, regarding two incidents of being out-of-ratio and for violation of “listed substitute requirements.” A $300 fine was imposed and the registration was placed on probationary status in February 2009. In a letter dated August 27, 2009, the Department informed Ms. Huewitt that the Probationary Registration was lifted effective August 9, 2009, because “the Operator has been in compliance with ratio and capacity requirements during periodic monitoring/inspections while on probationary registration.”2/ Facts concerning the Amended Notice of Administrative Action Ms. Huewitt has three adult children: Jennifer Oliver, Stephanie Oliver, and Anthony Oliver. Jennifer Oliver was listed as an “other family/household member” on the 2007, 2008, and 2009 applications. As a result, a background screening was conducted on Jennifer. The background screening revealed a disqualifying offense. Jennifer requested an exemption from disqualification, but was denied. Consequently, Jennifer Oliver was not permitted to be in the home during the operational hours of the day care. On February 2, 2009, Ms. Huewitt entered into a safety plan in which she agreed not to allow her daughter, Jennifer, to supervise the children while in her care, or even to allow Jennifer to be in the residence while children are in her care during business hours. Despite this, on August 11, 2009, at approximately 9:25 a.m., the Family Services Counselor, Miatta Jalaber, went to Ms. Huewitt’s home and saw Jennifer in the home. Jennifer exited the home as Ms. Jalaber did her walk-through. As a result, Ms. Jalaber called her supervisor, who instructed Ms. Jalaber to write another safety plan for Ms. Huewitt. The August 11, 2009, safety plan was hand-written by Ms. Jalaber while at Ms. Huewitt’s home day care and states, “I Alisa Huewitt understand that my daughter, Jennifer Oliver, must not be present in my residence [address] during operating hours 7:30 a.m.-6:00 p.m. M-F while I have children in care.” The safety plan was signed by both Ms. Jalaber and Ms. Huewitt. Ms. Jalaber made subsequent visits to Ms. Huewitt’s home on October 30, 2009, December 29, 2009, January 29, 2010, February 5, 2010, February 19, 2010, and March 30, 2010. No other persons were present and Ms. Huewitt’s home was in ratio during those visits. She did observe Jennifer in the home on April 16, 2010, but the day care was closed that day. Stephanie Oliver is not listed on any of the applications as a person residing in the home, but has been seen at Ms. Huewitt’s during hours when the day care is open. While there was some testimony that both Stephanie and Ms. Huewitt’s son Anthony have some sort of criminal background and that they have been seen at the day care during business hours, the record is insufficient to establish that their criminal records contain disqualifying offenses, or that they actually live in the home. What is clear is that Ms. Huewitt is of the belief that it is not necessary to list persons who do not actually reside in the home, but who frequently visit the home, on her applications under the category “Other Family/Household Members.” There were instances in which Ms. Jalaber went to the day care home and was led to believe that Jennifer Oliver was Stephanie Oliver. Ms. Jalaber only learned that the daughter she saw and spoke to at the home was Jennifer, who was not supposed to be there during working hours, when she attended Jennifer’s exemption from disqualifying fact-finding meeting. While the record is insufficient to clearly support a finding that Ms. Huewitt lied to Ms. Jalaber about her daughter’s identity, she was not forthcoming with clarifying the confusion. In July 2009, the Department received an abuse report that Ms. Huewitt’s grandson, Kory Hill, Jr., sustained a skull fracture in her residence during business hours. Ms. Jalaber went to Ms. Huewitt’s home, not to investigate the abuse report, but because there was concern that Kory Hill, Sr., who reportedly was taking care of Kory Hill, Jr., on the day of the incident, was residing in the home. Kory Hill, Jr., is Jennifer’s son. Ms. Jalaber addressed her concerns with Ms. Huewitt.3/ During this visit, Ms. Jalaber learned that there was a separate structure in back of Ms. Huewitt’s house. Ms. Jalaber describes it as being just three steps in back of the main house. The structure contains a large room, a closet, and a bathroom and will hereinafter be referred to as “the apartment.” Ms. Jalaber observed clothes in the apartment’s closet and throughout the apartment, and sofa cushions on the floor. It appeared to Ms. Jalaber that someone was residing in the apartment. Ms. Huewitt denies that Mr. Hill, Sr., resided in her home. However, Ms. Huewitt acknowledges that her infant grandson, Kory Hill, Jr., was injured while in the care of his father, Kory Hill, Sr., and that the injury took place in the apartment in back of her house. The injury took place during the day while children were in her care in the main part of her house. Jhaismen Collins is a Child Protective Investigator with the Department. She was assigned to investigate the abuse report regarding this incident. Her investigation began July 1, 2009, at the emergency room where Kory Hill, Jr., had been taken. While there, she spoke to Ms. Huewitt and other family members present in the emergency room. She then made several visits to Ms. Huewitt’s home to follow-up, after the baby was discharged from the hospital. During the follow-up visits, Ms. Collins observed Stephanie in the home and observed Kory Hill, Sr., packing his belongings to leave the home. While the evidence is inconclusive as to whether Mr. Hill actually resided in the apartment behind Ms. Huewitt’s home, it is clear that he frequented the home and the apartment behind the home to visit his son. His son, Kory, Jr., and another son, Kentavious, who is also Ms. Huewitt's grandson, are now attending Ms. Huewitt’s day care. Ayuana Hale is a Dependency Case manager for the Department. Her job is to provide needed services to the child and family in the case of a verified finding of abuse, neglect, or abandonment. She was assigned to the case involving Kory Hill, Jr., after the abuse investigation was closed as verified. Ms. Hale testified that Mr. Hill is currently incarcerated. She has knowledge of this because she is obligated to try to offer Mr. Hill services while he is incarcerated. Parents of children who attend Ms. Huewitt’s home day care are extremely complimentary of the care their children receive, and are not concerned with the safety of their children while there.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order placing the license on probation, requiring Respondent to attend further training in the requirements of applicable statutes and rules regarding who must be listed on her applications, requiring those listed to undergo background screening, and requiring successful completion of such training, with no further incidents, prior to approval of Respondent's application for renewal of her registration. DONE AND ENTERED this 24th day of June, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2010
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
Findings Of Fact Petitioners are licensed by Respondent to provide foster care to children in Petitioners' home. Substantially prior to the incidents in question, Petitioners received written materials from Respondent confirming that the foster children at all times remain under the supervision and control of Respondent and that Respondent's discipline policy "[p]rohibits any form of corporal punishment ...." On at least two occasions during the latter half of 1992, a representative of Respondent reminded Petitioners of the policy against corporal punishment. Despite numerous reminders of Respondent's policy against corporal punishment in a foster care setting, on January 29, 1993, Vivian Griffin spanked a 2 and 1/2 year old boy who was in their foster care. He had soiled his diapers during a visit by Mr. and Mrs. Griffin to a commercial lender. As Mrs. Griffin removed him from the office, she threatened, "I'm going to take you outside and I'm going to take your pants down." She took the toddler to her van where she struck the boy at least five to ten times with her bare hand in the area of his buttocks. The incident drew the attention of two office workers, one of whom went out to the van and intervened. When asked by the office worker if she could help, Mrs. Griffin responded, "He shit in his pants." Petitioners' parenting skills are deficient. Mrs. Griffin in particular has a high frustration level with the young children who have been placed in their home. During one home visit by a representative of Respondent, Mrs. Griffin followed around a two year old who was exhibiting normally inquisitive behavior in her home. Rather than remove objects that the toddler should not have touched, Mrs. Griffin hovered over the child, inappropriately threatening at one point a two-minute timeout if the behavior persisted. Both Petitioners have displayed a strong lack of affection, considerable nervousness, and much agitation with the foster children who have been placed with Petitioners. At the same time, Mrs. Griffin constantly resisted help offered by Respondent's representatives and instead complained about these and other persons available to help her. Respondent has offered Petitioners free day care, parenting classes, and individual counselling. But Mrs. Griffin refused to go to the parenting classes or take the children to day care. She reluctantly attended one or two sessions of individual counseling, but soon quit going.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying the renewal of a foster care license to Petitioners. ENTERED on April 20, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on April 20, 1994. APPENDIX Rulings on Petitioner's Proposed Findings rejected as not finding of fact. rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 3-5. rejected as recitation of evidence. Rulings on Respondent's Proposed Findings 1-6. adopted or adopted in substance. COPIES FURNISHED: Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Attorney Kelly A. Lee P.O. Box 7946 Naples, FL 33941-7946 Elmer and Vivian Griffin P.O. Box 2544 Immokalee, FL 33934 Attorney Anthony N. DeLuccia, Jr. District 8 Legal Office Department of Health and Rehabilitative Services P.O. Box 06085 Ft. Myers, FL 33906
