The Issue The issues in this case are: (a) Whether Petitioner's license as a family day care should be renewed; (b) Whether Petitioner was required to list Halvert Swanson as a household member on her annual application for a family day care license; and (c) Whether Halvert Swanson, a convicted sex offender, was a member of Petitioner's household at any time between 1997 and 2000.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant to this matter, Petitioner, Gennell Hardnett, d/b/a Nell's Day Care, was licensed by Respondent to operate a family day care out of her home located at 513 West 14th Street, Apopka, Florida. Petitioner had been licensed by Respondent in 1995 as a family day care facility, and her license has been renewed on an annual basis therefor. Petitioner's license permitted her to operate 24 hours a day, Monday through Saturday. However, Petitioner actually operated her day care from 6:30 a.m. until midnight, Monday through Friday. She was never open during the weekends. Petitioner's application for renewal of her license for the year 2000-2001 was denied. As part of her licensing requirements, Petitioner knew she was to list on her Application for Licensing all of her household members for possible background screening. This is to ensure that all members of her household were properly screened for disqualifying offenses. For each of the five years since 1995, Petitioner listed herself and her sons, Quantas Hardnett and Demetric Hardnett, as household members on her licensing application. She did not list another son, Halvert Swanson, as a household member. On her renewal application for the year 2000-2001, Petitioner listed as household members, herself and her son Quantas Swanson because Demetric, at the time, was residing with an aunt. Halvert Swanson was, again, not listed. Halvert Swanson, also the son of Petitioner, had been convicted of the felony of attempted lewd acts upon a child under the age of sixteen in approximately 1990. Swanson was in the custody of the Department of Corrections from approximately February 3, 1990 to June 1, 1993. He was released from custody in 1993. Following his release from prison, Swanson listed the address of his mother, Petitioner, as his residence address with the State of Florida, Department of Corrections. Petitioner was aware that her son Halvert had been convicted of this crime. She also knew that her son Halvert Swanson was not permitted to be a holdhold member, and was not to be permitted unsupervised contact with children under Petitioner's care. Petitioner has never listed on her applications, nor notified Respondent, that her son, Halvert Swanson, resided at her family day care facilities, located at 513 West 14th Street, Apopka, Florida On September 23, 1997, Barbara Osborne, a Department of Corrections probation specialist, visited with Halvert Swanson in the residence located at 513 West 14th Street, Apopka, Florida. The purpose of Osborne's visit with Swanson was to monitor his compliance with conditions of his release from prison. This visit with Swanson was unannounced. During the visit with Swanson, Osborne confirmed that Swanson resided at the address on 513 West 14th Street. During her visit with Swanson, Osborne also observed several children at the home. She was not aware if Petitioner was present or not. Osborne informed Swanson that if he intended to continue to reside at the house at 513 West 14th Street, Petitioner would need to complete an affidavit addressing whether Swanson had unsupervised contact with children. Osborne returned to the house at 513 West 14th Street on November 18, 1997, because Swanson had not reported to Osborne as required. During her visit to the house, Osborne spoke with Petitioner who confirmed that Swanson was still residing at the home at 513 West 14th Street. Osborne reminded Petitioner of the conditions on Swanson's release regarding no unsupervised contact with children, and let her know that she would have to complete an affidavit if he continued to reside at Petitioner's home. Early in the year 2000, a local television reporter for WKMG, Channel Six, Tony Pipitone, while investigating a news story, visited Petitioner's home. While there, Pipitone asked if Halvert Swanson was there. Petitioner replied "No," and Pipitone left. He later returned to Petitioner's home, this time with a cameraman. Pipitone asked Petitioner if Halvert Swanson lived there, and this time Petitioner replied "Yes," and that he stayed there on weekends. The story aired on local television, and Respondent was made aware of the allegation that a felon with a conviction of attempted lewd acts on a child under the age of sixteen was living at a family day care. In April 2000, Respondent learned from a local television reporter that Petitioner stated to the reporter that Halvert Swanson stays at her house on weekends. Some of Respondent's staff reviewed a video-tape of Petitioner's statement to the local reporter. By letter dated April 21, 2000, Respondent denied Petitioner's application for re-licensure of her facility for the year covering May 2000-2001. Petitioner offered testimony of several witnesses who were unable to recall accurate details about Halvert Swanson's whereabouts from 1990 through 2000. However, it appears that, since his release from prison, Swanson had no permanent place of residence, but moved about, living with various relatives and girlfriends at his convenience. In addition, he was incarcerated for parts of this time period. During the relevant time period, Halvert Swanson, on occasion, visited the home of Petitioner and stayed overnight with his mother and his brothers on weekends. Swanson was also asked to stay at and look after Petitioner's home on several weekends while Petitioner and her other sons were out of town. Swanson continued to visit with his mother and brothers at 513 West 14th Street, Apopka, Florida, and continued to use her home as his permanent address. In the five years that Petitioner operated her licensed family day care center, the children under the care of Petitioner have not been injured or hurt.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for re-licensure of her family day care home, for the year 2000-2001. DONE AND ENTERED this 19th day of October, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2000. COPIES FURNISHED: Paul V. Moyer, Esquire Moyer, Straus & Patel, P.A. 815 Orienta Avenue, Suite 6 Post office Box 151058 Altamonte Springs, Florida 32715-1058 Eric D. Dunlap, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner proved by clear and convincing evidence allegations contained in its Proposed Revocation of Respondent's Family Day Care License No. 907 dated January 21, 2004.
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 (2003), and the entire record compiled herein, the following relevant and material facts are determined: The Parties Petitioner is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Petitioner routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the home’s operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on family day care homes that have a provisional license rather than a standard license. Petitioner also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time without notice. Respondent is the provider and licensed owner of a licensed family day care home located at 965 Waldon Avenue in Bartow, Florida (hereinafter “Respondent’s facility” or “the facility”). Respondent’s facility consists of a family residence with a connecting door to the converted garage. The number of children Respondent may have in “care” each day depends upon: (1) the ages of the children in care and (2) the number of qualified caregivers available to supervise the children in various age groups. This restrictive requirement, referred to as the “child care ratio,” is mandated by statute, the violation of which creates a dangerous situation and a dangerous condition for the safety and well-being of the children in care. The Inspection and violations On March 12, 2003, Respondent’s facility was inspected by Gloria Mathews (Ms. Mathews) and Tricia Step (Ms. Step), and several areas of non-compliance were identified during this inspection. The following non-compliant items were noted on Petitioner’s Family Child Care Home Inspection Checklist: unsafe storage of materials dangerous to children was observed in the bathroom drawers, litter was observed in areas where children play, equipment or plumbing not in working order (item was a baby crib and toilet with tissue the children had not flushed), no operable smoke detector or fire extinguisher, the surface of the diaper changing area was not impermeable, no record of fire drills for the past six months, and an up-to-date and age-appropriate immunization record was missing for one child. Two other non-compliant items, Ipecac not labeled with poison control phone number and seven pre-school age children ages 12 months and older were in the facility. Respondent may provide care to only six children in this age group. The extra child was taken home, and this item was corrected at the time of inspection. On December 18, 2003, Respondent’s facility was inspected by Ms. Mathews and Ms. Step, and the following non- compliant items were noted on the Family Child Care Home Complaint: Respondent had 18 children in the facility three of which were infants. Respondent was not present at the time of inspection, and the substitute caregiver was in charge. Petitioner could not determine whether screening of the substitute caregiver, Elizabeth Ricks, had been completed. Ms. Mathews and Ms. Step remained at Respondent’s facility until the parents picked up their children. James Hayes (Mr. Hayes), Respondent’s husband, took one child home. On January 21, 2004, Petitioner informed Respondent by certified mail of the proposed revocation of her family day care license initially issued in March 2002. Petitioner alleged that the decision to revoke Respondent’s license to operate a family child care facility was based on her failure to ensure that the children' substitute caregivers were adequately screened and because Respondent's home was over capacity and out of ratio. The notice stated: On December 18, 2003, there were eighteen (18) children in your day care home. Three (3) of the children were under the age of twelve (12) months. With 3 infants in your care, your license permits you to care for a maximum of six (6) children. The number of children in your home far exceeds the number of children allowed. During an inspection on March 12, 2003, seven (7) preschool age children ages 12 months and older were observed in your home. You are permitted six (6) children in this age group. This violates section 402.302(7), F.S. You also failed to insure [sic] that the substitute care persons in your home caring for children were properly screened in accordance with section 402.313, Florida Statutes. At the final hearing, Petitioner’s inspectors, Ms. Mathews and Ms. Step testified that when they arrived at Respondent’s facility on December 18, 2003, Mr. Hayes was in the facility. Based upon the testimony of the inspectors, Petitioner argued in its post-hearing submittal that Mr. Hayes had not been screened and that he had a criminal record. Petitioner presented no evidence to substantiate the claim that Mr. Hayes had a criminal record. The testimony and argument regarding this issue is hearsay without corroboration and disregarded. Respondent's Evidence Respondent testified that she was out of town on December 18, 2003, and that her substitute caregiver had begun training classes, but apparently had not completed the course and, therefore, had no background check performed. According to Respondent, non-compliant items identified by Petitioner’s inspectors were corrected as soon thereafter as possible. Respondent testified that she was confused regarding the infant and pre-school child-to-caregiver ratio because it was never explained to her in the manner testified to by both Ms. Mathews and Ms. Step. Continuing, Respondent testified that her substitute caregiver(s) had completed the required training and are now qualified to assist her. She contended that submission of the names and certification of training completion had been provided to Petitioner and that she was awaiting Petitioner's response. This testimony was not disputed by Petitioner. Respondent, to counter allegations that her facility and personnel presented a significant or potential risk of harm to the children, provided four testimonial letters from parents who were regular patrons of her facility. Each of the four parents expressed confidence in the assurance of safety and the ready necessity of Respondent’s child care services during the work week and often times during the weekend. Respondent presented photographs of her facility evidencing the facility’s configuration, carpeting, equipment, beds, and other furniture. Respondent testified that Mr. Hayes does not enter the facility during the time children are present. To ensure separation between the family’s living area and the attached rooms used for child care, Respondent installed a door between the room leading from the family’s living area to the anteroom and the garage. Respondent corrected every non-compliant item identified by Petitioner during their two inspections of her facility. Many, if not all, corrections were made when identified; i.e., the clogged toilet was flushed. The non- compliant items, individually or collectively, were minor and did not directly create an unsafe situation for the children in care. These efforts demonstrated a sincere intent and desire to comply with Petitioner's rules and regulations and to continue to provide a safe and necessary family day care home for working parents in her immediate neighborhood. Violations Proven by Petitioner Petitioner proved by clear and convincing evidence that on March 12, 2003, there were seven preschool children ages 12 months and older in the facility, Family Day Care License No. 907 permits a maximum of six children in care, an amount in violation of Subsection 402.302(7)(c), Florida Statutes (2003). Petitioner proved by clear and convincing evidence that on December 18, 2003, there were 18 children in Respondent's facility in violation of Subsection 402.302(7)(b), Florida Statutes (2003).
Recommendation Based upon the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating Subsection 402.302(7), Florida Statutes (2003), twice. Finding Petitioner not guilty of violating Section 402.313(3), Florida Statutes (2003). Setting aside the revocation of Respondent's family day care home license. Suspending Respondent's family day care home license until such time that the following conditions are met to the satisfaction of the Department: Respondent's substitute caregivers are identified, trained, qualified, and approved by Petitioner. Respondent demonstrates an understanding of the required child-to-child caregiver ratios. Respondent has trained each of her substitute caregivers on the child-to-child caregiver ratios and provides written instructions to be followed by her caregivers each day when the children in care in a specific age group are out of ratio to the number of caregivers present. That all conditions hereinabove are completed to the satisfaction of Petitioner as the condition for lifting the suspension. DONE AND ENTERED this 17th day of September 2004, 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 17th day of September, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Theresa Hayes Arielle's Angel Care 965 Waldon Avenue Bartow, Florida 33830 Paul F. 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 the case is whether the registration of Thorpe Lindsay's family day care home should be revoked.
Findings Of Fact The Department is responsible for the registration and supervision of family day care homes, pursuant to Section 402.313, Florida Statutes (2007). Respondent, Thorpe Lindsey, has been registered to operate a family day care home at 2306 Savoy Drive, Orlando, Florida, since December 18, 2006. 3. On June 27, 2007; July 13, 2007; and July 26, 2007, Respondent allowed an unscreened and unapproved substitute, Sheneka Henderson, to be alone with and supervise children in the family day care home. Respondent was not present in the home on at least two of these occasions. On all three occasions, Respondent appeared after the Department's protective investigator or child care licensing supervisor noted his absence and the presence of Ms. Henderson as the caregiver.2 On July 13, 2007, Respondent was cautioned in person about the repercussions of allowing unscreened personnel to supervise children. On September 14, 2007, the Department issued an Administrative Complaint against Respondent, seeking to impose a civil penalty in the amount of $500.00 for the three instances of using an unscreened and unapproved substitute caregiver. Respondent refused to accept service of the Department's certified letter. The copy of the Administrative Complaint sent by regular U.S. Mail was not returned to the Department, and Respondent never sought a hearing or otherwise contested the allegations of the Administrative Complaint. Aside from the problem of unscreened personnel, Respondent also had a recurring problem of caring for a number of children greatly in excess of the ratios allowed by statute in his family day care home. Under any circumstances, a family day care home may provide care for no more than ten children. See § 402.302(7), Florida Statutes (2007). On June 27, 2007, the Department sent a certified letter to Respondent noting that on the previous day, the Department had received a report that Respondent was caring for between 30 and 40 children. The letter cautioned Respondent that he must immediately reduce enrollment and submit a written plan to the Department by July 10, 2007, identifying the names and birth dates of the children for whom Respondent would continue to provide care, as well as the names and birth dates of the children whom Respondent eliminated from his roster. Respondent never provided the required documentation to the Department. The Early Learning Coalition of Orange County is a public/private partnership established to ensure that children enter school ready to learn. In coordination with the Department, the Early Learning Coalition provides health and safety inspections for anyone receiving school readiness funding. Because Respondent received such funding, Eric Allen, an inspector for the Early Learning Coalition, made regular visits to the family day care home. On July 6, 2007, Mr. Allen made a routine visit to Respondent's home and found several violations, including a ratio violation, the presence of unscreened volunteers caring for children, chemicals under kitchen and bathroom sinks without door locks on the cabinets, and uncapped electrical outlets. On July 9, 2007, the Early Learning Coalition sent a letter to Respondent outlining the violations and requiring their correction pending a re-inspection of the family day care home. On July 20, 2007, Mr. Allen conducted a routine visit to Respondent's home and again found the home to be out of ratio. On July 26, 2007, the Early Learning Coalition sent a letter, signed by Donna J. Williams, director of quality services, to Respondent that stated the following, in relevant part: This letter will clear up any confusion as to the number of children you are legally allowed to care for. As a family home provider, six (6) is the maximum number of children under the age of five you are allowed to have in care at one time. If an infant is present, the maximum number of children allowable at one time is five (5). I am enclosing the state ratio chart so you may be clear on the number and age of children you are legally allowed to have in your care at one time. Since this falls under our Non-compliance Policy, you are hereby on notice that if there is any other incident where you are found in non-compliance with any Level I violation, the parents of school readiness funded children will be contacted and given the opportunity to transfer as you will be ineligible to receive school readiness funds for a period of one year. On September 7, 2007, at approximately 3:45 p.m., Mr. Allen again visited Respondent's registered family day care home. Mr. Allen found a note on the front door stating, "We are on a field trip," with contact information for parents at the bottom. Mr. Allen noted that the contact numbers on the note did not match the contact information on file at the Early Learning Coalition. He also noted that all of the windows of the house were covered with blinds or cardboard. Mr. Allen testified that he had made several prior attempts to visit the home in recent days, but that on each occasion was met with a note claiming the children were out on a "field trip." He was about to walk away from the house when he heard a baby crying inside. He rang the doorbell and knocked on the door but received no response. He called out to whomever was inside the house, "This is Eric from the Early Learning Coalition. I can hear a baby crying. You need to open the door or you are violating your provider agreement and you are in danger of being de-funded." There was still no response from inside the house. Mr. Allen walked around to the back door. He knocked on the window of the rear childcare area and repeated his warning. After several minutes, a car pulled up to the home. A woman got out of the car and approached the front door. Mr. Allen asked if she was there to pick up a child, and she answered affirmatively. She rang the doorbell but no one answered. Mr. Allen offered to call the contact number, but the woman just turned and drove away. Mr. Allen called the Early Learning Coalition's office and asked the administrative assistant to verify and call the contact number for Respondent's home. When the assistant called the number, a woman who identified herself as Respondent's sister answered and stated that the children were out on a field trip. Mr. Allen then called the contact number and asked Respondent's sister where the children were. She stated they were on a field trip to Pizza Hut. Mr. Allen told her he could hear a baby crying inside and that if the door was not opened he would call the police. Respondent's sister hung up the phone. Just as Mr. Allen's phone conversation concluded, approximately 25 minutes after he first arrived at the house, the woman in the car returned. As the woman walked up to the front door, the door was opened by Toshiba Lindsey, another of Respondent's sisters, who was holding a baby she said was her son. Mr. Allen showed Ms. Lindsey his identification and asked her why he had been left outside trying to get someone to open the door for nearly a half hour. Ms. Lindsey claimed to have been sleeping and not to have heard the knocking. Mr. Allen entered the home and started down the hallway, but Ms. Lindsey forbade him from entering one of the rooms. Mr. Allen could hear a child crying inside the room. He demanded to know whose child was behind the door. Ms. Lindsey denied there was anyone in the room. For several minutes, Mr. Allen attempted to convince Ms. Lindsey to open the door, but she continued to say that she could not open it. Mr. Allen told her to call Respondent, who was not in the house. Mr. Allen spoke to Respondent and told him that he would call the police if Ms. Lindsey did not open the door. Respondent hung up on him. Mr. Allen called 911 and requested an officer to come to the house and open the door. A moment later, the door to the room opened and another woman, Sheneka Henderson, emerged with 13 children. Neither Ms. Lindsey nor Ms. Henderson had been background screened or trained to act as caregivers. Mr. Allen recorded the names and ages of the children, then left the home. Respondent never showed up at the house while Mr. Allen was there. On September 10, 2007, the Early Learning Coalition sent Respondent a letter notifying him that he would be ineligible to receive school readiness funds for a period of one year, based on Respondent's repeated violations of mandatory state ratio requirements.
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 revoking the registration of Thorpe Lindsey to operate a family day care home. DONE AND ENTERED this 10th day of April, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2008.
The Issue The issues in these cases are: whether the Davis Family Day Care Home violated provisions of chapter 402, Florida Statutes,1/ and Florida Administrative Code Chapter 65C-20,2/ and, if so, what penalty should be imposed; whether the Davis Family Day Care Home's renewal application for a license to operate a regular family day care center should be approved or denied; and whether the Davis Family Day Care Home's initial application for a license to operate as a large family child care home should be approved or denied.
Findings Of Fact The Parties The Department is responsible for inspecting, licensing and monitoring child care facilities such as the one operated by the Davis Day Care. It is also the Department's responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Following such inspections, a report is provided to the operator which provides a time frame to correct any outstanding deficiencies. The Department also conducts inspections or investigations of child care facilities in response to complaints it receives. LaShandra Davis (Ms. Davis) owns and operates the Davis Day Care, a family day care facility licensed by the Department. The Davis Day Care was initially licensed in April 2007 and was in continuous operation at all times material to these issues. No testimony was offered that the facility had prior disciplinary actions against it. Ms. Davis is a nurse, has an associate of science (A.S.) degree in nursing from Polk Community College, and is attending college to obtain an A.S. degree in early childhood education. Additionally, Ms. Davis has five sons and one daughter. Their names include (from youngest to oldest): Layla Davis, Steven Davis, Devondrae Davis, Deshawn Williams, Daniel Williams, and Rafael Davis. No testimony was received regarding Ms. Davis using any other name or names from August 3, 2010, through December 2, 2010.5/ On February 23, 2011, Ms. Davis submitted an application to obtain a license to operate a large family day care home at her current location. On March 15, 2011, Ms. Davis submitted her renewal application to retain her license to operate a family day care home at her current location. October 29, 2010, AC 1 (August 3, 2010, Inspection) On August 3, 2010, the Davis Day Care was subjected to an inspection based on a complaint that it was "over-ratio." This over-ratio issue involves the number of children in the care of a family day care operation to the number of adults providing that care. The Department received a complaint that the facility was seeking meal reimbursements for more children than were allowed for the type of child care license it held. Vicki Richmond (Ms. Richmond) testified that she conducted the inspection on August 3, 2010, and cited the facility for being over the licensed capacity ratio by more than two children. Because the facility was over ratio by more than two children, it was a Class I violation. At that August inspection, Ms. Davis explained to Ms. Richmond that she (Ms. Davis) had a license to provide child care for ten children, and she had ten children in her care. Ms. Richmond explained the ratio requirement to Ms. Davis. Based on the age of the children, Ms. Davis was authorized to have a maximum of ten children provided no more than five were preschool age, and, of those five, no more than two were under 12 months of age. At this August inspection, Ms. Davis was over-ratio by two children. Ms. Davis executed and received a copy of the complaint report prepared on August 3, 2010, that discussed the over-ratio limitations. Three other technical violations were brought to Ms. Davis's attention during that inspection, and two of those violations were corrected immediately. Ms. Davis was given a two-week extension to correct the third violation involving an expired fire extinguisher.6/ Additionally, Ms. Richmond testified that Ms. Davis's mother ("Ms. Jones")7/ was visiting the facility while Ms. Richmond was conducting this August inspection. According to Ms. Richmond, Ms. Jones had been previously screened, but did not meet the Department's standards to be in a child care facility. Ms. Jones should not have been present either for a visit or to be preparing lunches as the testimony revealed. Ms. Richmond recommended to Ms. Davis that it was important to check into getting an exemption for Ms. Jones to be at the facility. Ms. Davis later testified that Ms. Jones had cleared up the screening issue, and both had been told Ms. Jones was allowed to be present at the facility. At hearing, Ms. Davis admitted that she was over-ratio on August 3, 2010. Further, she stated that she "just flat out misunderstood" the adult-child ratio requirement issue until Ms. Richmond explained it to her in August 2010. Ms. Brooks and Mr. Giordano testified that they had each individually explained the ratio requirement to Ms. Davis during prior inspections or discussions at the facility. Although there is some discrepancy between Ms. Davis's recollection and the two witnesses on this point, Ms. Davis admitted this violation and was quite candid about her lack of knowledge with respect to it. Credible testimony from both Ms. Richmond and Shelia Nobles (Ms. Nobles) established that having two or more children over-ratio was a Class I violation, which would subject any child care facility to discipline by the Department. When Ms. Davis received the Department's three-page October 29, 2010, AC 1 advising her of the Class I violation (over-ratio by two or more children) and assessing a $500 fine, she was "shocked." Ms. Davis testified that, at the time of the inspection (August 3, 2010), Ms. Richmond had stated the fine might be $50 or maybe more, leading Ms. Davis to believe the fine would not be that high. AC 1 advised Ms. Davis that the over-ratio issue was a Class I violation of section 402.302(7). AC 1 provided one Department address for two reasons, to pay the $500 fine or to request an administrative hearing. There is no language within AC 1 that advised Ms. Davis of an optional payment plan. Ms. Davis testified she was unaware of a payment plan option, and her only option was to appeal the decision, which she did. Ms. Richmond confirmed that the Department would accept payments as long as the total fine amount was paid in full prior to the next renewal. However, that information was not shared with Ms. Davis until the hearing. Department's March 23, 2011, Proposed Denial Application to Operate a Family Day Care Home (AC 2) and Department's April 11, 2011, Proposed Denial Application to Operate a Large Family Day Care Home (AC 3). Both AC 2 and AC 3 set forth five allegations in support of the Department's denial of the renewal application and the large family child care home application. Two alleged abuse allegations from 2007 and 2008 were included in these administrative complaints; however, as previously stated, no testimony or evidence was offered, presented or substantiated at hearing. Thus, any attempt to reference either the 2007 or 2008 allegations as fact is disregarded as unfounded and not supported by credible testimony or evidence. AC 2 and AC 3 rest on three allegations: the alleged abuse of child E.B., the alleged lying during the investigation of the alleged child (E.B.) abuse, and the inspection conducted on August 3, 2010, regarding the facility being over ratio.8/ Natalie Barton (Ms. Barton), E.B.'s mother, testified that she saw marks on E.B.'s bottom at the end of November 2010 (November 30, 2010) that "could only have occurred at the day care." Ms. Barton testified she picked E.B. up from the facility prior to 5:30 p.m. and discovered the marks on E.B.'s bottom during bath time that evening. Both Ms. Barton and Ms. Davis testified that E.B.'s mother sent a picture of the injury to Ms. Davis via her cell phone the evening the injury was first seen. At that point, Ms. Davis told E.B.'s mother that she (Ms. Davis) didn't know what or how the injury occurred and recommended taking the child to E.B.'s doctor. Ms. Davis had no hesitation in making this recommendation to Ms. Barton. Ms. Barton took E.B. to her (E.B.'s) pediatrician the morning after she discovered the injury (December 1, 2010). However, E.B.'s physician indicated he wanted to see the child in two days, as he could not make a determination what, if anything, had caused the injury as there was no bruising. Ms. Barton also testified that she took E.B. back to the Davis Day Care after she was seen by her pediatrician so she could see how E.B. reacted. While at the facility, E.B. was "in her routine," that she (E.B.) walked in and sat on the couch like she did every day. Ms. Barton did not return E.B. to her own pediatrician for further evaluation. Ms. Barton testified E.B. was seen by the child protective team the day after she was seen by the pediatrician (December 2, 2010). On December 2, 2010, after receiving information about the possible physical abuse of a child (E.B.) (documented as being received at 11:08 p.m. on December 1, 2010), Deanna McCain (Investigator McCain) contacted Ms. Barton to obtain additional information. Investigator McCain also spoke with E.B., who said she had been hit by "Ms. Shawna." After observing E.B.'s injuries and obtaining a photograph of E.B.'s buttocks, an appointment was made for E.B. to be seen by a member of the child protection team, i.e., the nurse practitioner. During the afternoon of December 2, 2010, Nurse Practitioner Connie Fleming (Nurse Fleming) performed a medical evaluation of E.B., a then two-year, nine-month old child. During E.B.'s evaluation, Nurse Fleming noticed bruising on E.B.'s buttocks. When Nurse Fleming asked E.B. what happened, E.B. responded "Ms. Shawn spanked me." Nurse Fleming stated the bruising appeared to be consistent with an outline of a hand. Pictures taken during the medical evaluation reflect red areas on E.B.'s buttocks. Based on her nine-plus years of training and experience as a nurse practitioner, Nurse Fleming determined that E.B. had suffered physical abuse; however, she never stated who caused the injury. Nurse Fleming contended that the injuries were indicative of a rapid-force compression injury, typical of a slap with a hand. Later on December 2, 2010, Investigator McCain went to the facility to investigate the alleged abuse report. Upon her arrival at the location, Investigator McCain had to wait for a local law enforcement officer (LEO) before she could enter the facility. While Investigator McCain waited for the LEO to arrive (between 3:30 p.m. and 4:45 p.m.), she spoke with parents who were picking up their children from the facility. Each parent she spoke with had supportive comments about the facility ("great day care provider," their child had "no injuries," had never seen "inappropriate behavior," "no concerns"). Whether all these comments came from one parent or multiple parents is unclear. Investigator McCain did not observe any injuries to any of the children leaving the facility. Ms. Richmond also went to the facility at approximately the same time as Investigator McCain; however, Ms. Richmond could enter the home without a LEO, and she did so. Ms. Richmond made contact with Ms. Davis and explained there was a complaint. Ms. Richmond's task at the time was to obtain information about the number of children Ms. Davis had in the facility. According to the sign in sheet, there were seven children present, plus Ms. Davis's four-year-old son. Ms. Richmond testified that Ms. Davis initially stated there were four children present, but later a sleeping child was found in a crib, and her (then) four-year-old son ran through the home.9/ Although Ms. Richmond asked for the attendance sheets for the previous month (November 2010), Ms. Davis was only able to provide the attendance sheets for December 1 and 2, 2010.10/ According to Ms. Richmond, those two attendance sheets documented that Ms. Davis's facility was again over-ratio for those two days. When Investigator McCain entered the facility with the LEO, she explained the reason for her presence to Ms. Davis. Investigator McCain testified Ms. Davis was asked how many children were present and together they conducted a "walk- through" of the facility. Investigator McCain testified that, at the time of the walk-through, she was told there were four children present, three toddlers and a small child in Ms. Davis's arms. Investigator McCain also testified that, during the walk-through, they found an additional child sleeping in a crib. She further testified that, at some later point, another young child ran through the facility, and Ms. Davis identified him as her son. On December 2, 2010, Investigator McCain questioned Ms. Davis about the alleged physical abuse of E.B. During the investigation discussion, Ms. Davis reported to Investigator McCain that "she [Ms. Davis] had no idea how they [E.B.'s injuries] occurred." Ms. Davis further reported E.B. was "fully potty trained." Ms. Davis reported that the child had a toileting accident the day before and had cleaned herself. Still, later in the investigation discussion, Ms. Davis told Investigator McCain that she (Ms. Davis) had helped clean E.B. after the toileting accident, but only from the front, and she had not observed E.B.'s buttocks. Ms. Davis also shared with the investigator that when Ms. Davis questioned E.B. about the injury, E.B. said her mother (Ms. Barton) did it (the abuse). At hearing, Investigator McCain testified that Ms. Davis was "very far along in" a pregnancy and that Ms. Davis was upset, shocked, and surprised by the presence of the investigators. Investigator McCain also confirmed that DCF's presence tends to raise anxiety levels and that people feel like they are being attacked. Further, Ms. Davis confirmed that she was two weeks from her delivery due date when this investigation started. Thus, under the circumstances, forgetfulness may be perceived by some as lying, when in reality it is simply being overwhelmed by the situation. As part of the investigation, it was Investigator McCain's responsibility to also check for any hazards in the facility and to ensure adequate supervision of the children. Although Ms. Davis initially reported there were no other adults to supervise the children, she later reported that her mother, Ms. Jones, came each day around 10:15 a.m. to make lunch for the children. Ms. Barton confirmed that Ms. Jones was sometimes present in the mornings when Ms. Barton brought E.B. to the facility. Several technical violations were noted during the December 2010 investigation; however, they are not the subject of this hearing. Ms. Davis testified she did not spank E.B. Ms. Davis testified that she did not know how the injury occurred, and the child's hearsay statement that her mother had spanked her is not supported by other testimony. However, the time lapses between when the injury was alleged to have occurred (the "end of November," or November 30, 2010, according to the mother), when the injury was "discovered" (the night of November 30, 2010, according to the mother), when the alleged abuse was reported (December 1, 2010, at 11:08 p.m.), when the pediatrician's examination occurred on December 1, 2010, and when the child protective team became involved (December 2, 2010), create confusion and doubt as to when the injury actually occurred and by whom. Even taking the thought process to try to find that the events happened a day later does not relieve the doubt or confusion, nor is that supported by the Department's documentation. Investigator McCain testified that this investigation was closed with a verified finding of physical injury to E.B. However, simply finding a "verified finding of physical injury to E.B." does not establish who perpetrated that physical injury. No testimony was provided that any other possible explanation for the injury was explained. Further, other than indicating that E.B. had red marks on her bottom, no testimony was provided that indicated the degree of harm to the child. That being said, this not to say that logic has left the building with respect to some harm being caused to the child. There were marks on E.B.'s buttocks. Several current and former parents of children who attend or attended the Davis Day Care testified on Ms. Davis's behalf. Each testified that they did not have any concerns with their child attending Ms. Davis's facility. On March 11, 2011, after receipt of the facility's application for the large family day care home license,11/ the Department conducted an inspection of the facility and found it to be in compliance with all the licensing standard requirements (including those previously cited during the December 2010 inspection that were corrected). Upon completion of its investigation, the Department determined to deny Ms. Davis's renewal application and to deny her application for a large family day care license, based on "numerous complaints to our office alleging physical abuse of children in your care and Class I violations of licensing standards." There was one verified complaint of abuse, not "numerous complaints" as alleged. There was a Class I violation regarding the over-ratio issue; however, that could have been resolved with better communication skills. The misrepresentation could have been avoided. Neither notification includes any indication that the March 11, 2011, inspection was taken into consideration prior to making the denial decision. The Department presented testimony indicating that there had been past complaints regarding Ms. Davis and/or the facility. However, no documented prior complaints or final orders were submitted with respect to any prior actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: With respect to the October 29, 2010, administrative complaint, that a final order be entered by the Department of Children and Families finding that the facility was over-ratio on August 3, 2010, and imposing an administrative fine of $500 with no less than ten months to pay the fine. It is further RECOMMENDED that Ms. Davis be ordered to attend remedial classes on the financial operations and management of a child care facility; With respect to the March 23, 2011, administrative complaint, that a final order be entered by the Department of Children and Families renewing the family day care home license on probation status for six months with periodic inspections to ensure the continued safe operation of the facility; and With respect to the April 11, 2011, administrative complaint, that a final order be entered by the Department of Children and Families finding that the large family child care home application be issued a provisional license for a minimum of six months with periodic inspections to ensure the continued safe operation of the facility, with the ability for an additional six-month provisional period. In the event the large family child care home provisional license is not activated within two months of the issuance of the final order in this matter, a new application shall be required, subject to all the applicable statutory requirements. DONE AND ENTERED this 25th day of October, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 25th day of October, 2011.
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 The issue in this case is whether Petitioner, Sabra Portwood, is entitled to register her home as a family day care home under the provisions of Chapters 402 and 435, Florida Statutes.
Findings Of Fact On August 10, 2000, Petitioner was married to Randy Shoaff. She had two children, twins, by him and is currently pregnant with another of his children. Although estranged at present, they remain married. Petitioner is in the preliminary stages of dissolving the marriage and intends to complete the dissolution process. Petitioner and Mr. Shoaff have had a rocky relationship. On October 4, 2000, less than two months into their marriage, Mr. Shoaff struck Petitioner several times in the head from behind. She was pregnant at the time of the attack. The incident was reported to law enforcement. On March 12, 2001, Petitioner swore out a Petition for Injunction for Protection Against Domestic Violence, naming her husband as Respondent. The essential facts to which she swore and testified to at hearing were as follows: On February 23, 2001, at 705 W. Wilcox the Respondent Randolph Shoaff told me that the only reason I was still alive was because I was pregnant and that I have 3 other children. He said that he wanted to shoot me & then kill himself. Because of his actions before I have been afraid of him on 3 or 4 different occasions, and I would just be quiet & not say anything & wait for him to go to work. On Oct. 4th (there should be a police report) there was a dispute between us & he started hitting me in the head repeatedly when I was 3 months pregnant & had only been home for 3 hrs from the doctor because I was bleeding during pregnancy. I am afraid because I asked his coworker if his (Randy's) gun was under the counter & he said it wasn't there. As a direct result of Petitioner's request for a domestic violence injunction, the Third Circuit Court issued a Temporary Injunction. Subsequently, the injunction was conditionally dissolved. However, Mr. Shoaff was ordered to have no personal contact with Sabra Portwood at her home. A third Order was subsequently entered in order to facilitate visitation with his children, allowing non-hostile contact between the parties. Mr. Shoaff does not live with Petitioner. However, Petitioner and Mr. Shoaf are presently married. Therefore, Mr. Shoaf is currently a member of Petitioner's family and is required to undergo background screening for Petitioner's registration. Mr. Shoaff did not pass the background screening because of the injunction based on domestic violence entered against him. No exemption from disqualification was sought. Because of the failed background screening, Petitioner, who was the victim of domestic violence and took steps to protect herself from that violence, was denied registration based on the actions of her estranged husband.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying Petitioner's request to register her home as a family day care home. DONE AND ENTERED this 24th day of May, 2002, 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 May, 2002. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949 Sabra Portwood 140 Regina Road Perry, Florida 32348 John 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
