Findings Of Fact Based on my observation of the witnesses, their demeanor while testifying and the entire record complied herein, the following relevant facts are found. Respondents, Robert and Melody Chinnici, completed their foster care parent training program during September 16, 1991 (MAPP), and were thereafter licensed as foster care parents in October 1991. The MAPP training included Petitioner's discipline policy which is in the form of a written statement that was given to and acknowledged by Respondents. During times material, Respondents were entrusted to care for foster children Tonya Wilson, a 13-year-old, who resided with Respondents from approximately October 1991 through May 1992, and Jonathan, who was approximately 10 years of age. During this time frame, Respondents' natural son, Christopher Chinnici, also resided with them. During times material, Respondents used a form of "time out" to discipline the foster children when they were disruptive in church. The time out procedure utilized was one whereby the disruptive child would stand and face the wall for periods of five to fifteen minutes. When "time out" was imposed, the church services were over and most of the parishoners had left the parish. On at least one occasion, Respondent, Melody Chinnici, discussed with a foster parent a means of circumventing Petitioner's disciplinary policy respecting the pulling of foster children's hair. There was no evidence that Respondents in fact circumvented HRS' policy. Respondents attempted to serve meals to their foster children in an orderly fashion. During the course of serving meals, there was no evidence that Respondents withheld or otherwise utilized food as a means to discipline foster children in their care. Likewise, Respondent Melody Chinnici did not administer corporal punishment to foster children in her bedroom out of the view of other children.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order rescinding its proposed revocation of Respondents' foster care license and issue said licence forthwith assuming Respondents comply with other relevant criteria for the reissuance of their foster care license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of July 1993. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6751 Ruling on Petitioner's proposed recommended order. Paragraph 3, adopted as modified, paragraph 4, recommended order. Paragraph 4, rejected, contrary to the greater weight of evidence, paragraph 5, recommended order. Paragraph 5, adopted as modified, paragraph 4, recommended order. Paragraphs 6 and 7 rejected, contrary to the greater weight of evidence, paragraphs 6 & 7, recommended order. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services District Six Legal Office W. T. Edwards Facility 4000 West Dr. Martin Luther King Jr., Blvd. Tampa, Florida 33614 Robert and Melody Chinnici, pro se 5244 De Milley Road Polk City, Florida 33868 Robert Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard 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 is whether the license of Rev. Harris to operate a foster home should be terminated by the Department for the reasons stated in the Department's letter of October 7, 1988.
Findings Of Fact The Reverend Melda Harris provided foster care to children in the custody of the Department of Health and Rehabilitative Services (the Department). She became the foster parent of four siblings, Clive Davidson (born 9/30/78), Iman Davidson (born 1/1/80), Joy Davidson (born 7/24/81), and Lucky Davidson (born 12/2/83). The older children had been placed with Rev. Harris in 1985, the younger two were placed with Rev. Harris in 1987. The Davidson children had been abused by their natural parents and had been removed from their care; the extent and nature of the abuse is not clear from the testimony. A letter from Howard Marcus and Dr. Harvey Parker to the Department dated June 21, 1988, indicates that the natural parents were physically violent, the parents were frequently separated, and that ultimately the natural parents disappeared. The oldest sibling, Clive, was approximately 9 years old. He was being seen by a therapist, Art Jones, M.S.W., who was of the opinion that Clive should be separated from his siblings because of aggressiveness (physical violence), but especially because he had attempted on at least two separate occasions to simulate intercourse with his seven year old sister, Joy, while clothed. Therapy at the Henderson Mental Health Center was terminated because the therapist was of the opinion that Clive's sexual problems and propensity to act out further with his sister could not be dealt with effectively while he remained in the same home as his sister. According to Dr. Parker and Mr. Marcus, Clive engaged another little girl in simulated intercourse with him. On that occasion, both were unclothed. Joy Davidson was in treatment at the Broward County Sexual Assault Treatment Center due to her experiences with Clive. Rev. Melda Harris is a deeply religious woman who brought all the children up in a religious atmosphere. The children were actively involved in Massonic organizations where they interacted with other children. Rev. Harris selected the movies the children would watch, and generally they would watch a religious television station in the Broward County area (Channel 45), although they were not exclusively limited to that form of television. The children were also seen regularly by Ann E. Vaughn, who was their guardian ad litem for a period of four years before they were placed with Rev. Harris. Ms. Vaughn continued in that role after their placement in the Harris foster home. Ms. Vaughn would visit the home without prior appointments, there is no reason to believe that what Ms. Vaughn saw was not typical of the interaction of Rev. Harris and the children at the foster home. Ms. Vaughn was of the opinion that all the children had love and affection for Rev. Harris and that she did not concentrate her affections only on the youngest child, Lucky. The children generally stayed in the fenced-in yard at the Harris home because drug activity in the neighborhood made it unsafe for them to play in the street and because of the heavy traffic in the street outside the home. Ms. Vaughn was also worried the children's natural father would occasionally slip into the area, and Rev. Harris was concerned about leaving the children outside out the fenced area of the residence due to fear that the father might try to kidnap them. The most serious problem which the Department had with Rev. Harris occurred on August 10, 1988, when she came to the HRS office with Clive, and asked to return him to HRS custody. The Department was adamant that if she was not willing to keep Clive, the Department would remove the other children from her home in order to keep the siblings together. The Department staff took offense at Rev. Harris' action. In view of the serious consequences which could arise from further incidents of sexual acting out by Clive against his younger sister, Joy, it was entirely appropriate for Rev. Harris to be concerned about his remaining in the home, especially when the social worker assigned as Clive's therapist had resigned from the case in May of 1988 out of a belief that "Clive's sexual problems and propensity for further acting out in that manner, could not be effectively dealt with so long as he remained in the same home as his sister." (Respondent's late-filed exhibit, page 4, letter of June 21, 1988, from Howard Marcus and Harvey C. Parker, Ph.D., to Deborah Owens.) It is also significant, however, that Rev. Harris' decision to return Clive to HRS is not listed as one of the grounds the agency cited in its October 7, 1988, letter stating the Department's decision to close Rev. Harris' foster home.
Recommendation It is recommended that a final order be entered by the Secretary of the Department of Health and Rehabilitative Services dismissing the allegations contained in the letter of October 7, 1988, which forms the basis for the Department's notice of intention to close Rev. Harris' foster home (and implicitly to revoke her license to operate a foster home), and that her license be fully reinstated. RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of July 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1338 Rulings on findings proposed by the Department: The description of the children is adopted in Finding of Fact 1. The description of Ms. Andrews is rejected as unnecessary. Generally rejected because the question whether the children were allowed to eat is not at issue based on the charging document the Department mailed to Rev. Harris. Based upon the testimony of the Department's witnesses, I do not, believe that the children were not allowed to eat for an entire day, although the children may have said that. Whether the children were allowed to play outside the home and were restricted to viewing a religious television station are discussed in Findings of Fact 3 and 4. and 4. Rejected as unnecessary and irrelevant to the charges filed. The "additional concerns" are not appropriate because they are not the basis for the charge filed. Moreover, locking the children in their bedrooms was a misguided but understandable precaution given the concern about sexual acting out by Clive. The children were permitted to play outside, in their yard, and they did visit with other children especially at religious functions they attended, and at school. The children were not limited to watching a religious television channel. See, Finding of Fact 3. The allegation that Rev. Harris showed favoritism to Lucky is rejected. See, Finding of Fact 4. Precisely what it means to "speak poorly to the natural parents in front of the children" is not clear (Department proposed finding 5E). It is unreasonable to believe that the family unit could have been strengthened. The relationship with the children's natural parents has been severed by their adoption, and the removal from the custody of the natural parents appears to have been entirely appropriate. Similarly, the allegation that statements made by Rev. Harris "created concern" is difficult to understand, since there is no indication that there is any legal standard to be applied which forbids conduct by foster parents which "creates concern" among Department staff. Obviously Clive had serious problems, over and above his sexual problems, as indicated by the records placed in evidence. Surely Rev. Harris was not required to ignore instances of lying or stealing. It is by no means appropriate to conclude that Rev. Harris breached "a confidentially standard" (whatever that might be) because Ms. Johnson-Gilcort wrote that Clive "rape his sister and was no good." Ms. Johnson-Gilcort did not testify, and is not clear that Ms. Johnson-Gilcort's characterization of Clive in the letter had its source in Rev. Harris. Adopted in Finding of Fact 5. Rejected as inconsistent with the charging document, the October 7, 1988, letter. The issues for hearing were not framed in the letter dated September 12, 1988. Rejected as irrelevant to the issues framed for hearing. 9 and 10. Adopted in the Preliminary Statement. Generally adopted in the Preliminary Statement. Adopted in the Preliminary Statement, although this is not an "appeal." The testimony of Rev. Harris is addressed and generally adopted in Finding of Fact 5. Rejected as argument and irrelevant. The question is not whether Ms. Harris received a letter of August 11, 1988, but whether the Department could prove the allegations made in its letter of October 7, 1988, which it drafted, and which framed the issues for hearing. Generally adopted in Finding of Fact 4. 16 - 18.Rejected as unnecessary. COPIES FURNISHED: Jacqueline S. Banke, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Room 513 Fort Lauderdale, Florida 33301-1885 Rev. Melda Harris 681 N.W. 37th Avenue Lauderhill, Florida 23311 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Thomas and Shana Stone.
Findings Of Fact At all times material to this proceeding, the home of Thomas and Shana Stone was licensed by the Department as a foster home. Jeffrey G. was placed in the Stones' home on or about November 9, 2001, when he was approximately 10 months old. Two other children, who were eleven and four-year-old siblings, were also placed in the Stones' home around the same date that Jeffrey was placed in their home. The three children slept in the same bedroom which contained a bunk bed and a crib. According to Mrs. Stone, the siblings were unruly and she requested that the Department remove them from their home. The other children were removed from the home on November 12, 2001. On November 16, 2001, the Department received a report alleging that Jeffrey had a bruise three inches in length on his thigh. Jeffrey was brought to the Department's office by a foster care worker on November 16, 2001, for a scheduled visit with his mother. There is nothing in the record to indicate that Jeffrey was brought to the Department on November 16, 2001, as a result of the abuse allegation. Joann Lycett is a licensed protective investigator supervisor for the Department. Prior to becoming a supervisor, she was a protective investigator. During the time she has been an investigator and a supervisor, she took part in between 400 to 500 reports of child abuse or neglect. In addition to her experience as an investigator and a supervisor, Ms. Lycett received specialized training in child abuse investigations and earned certification in the child protection field. Her training includes determining the nature and cause of injuries to children. Ms. Lycett was present at the Department when Jeffrey was brought in for the visit. She observed an oval shaped bruise approximately three inches by two inches extending out from under the child's diaper onto his upper thigh. When the diaper was removed, Ms. Lycett could see bruising on the child's buttock as well. Ms. Lycett observed the bruise to be dark which was an indication to her that the bruise was recent as opposed to a bruise yellow or green in color. From her experience and training, the bruise did not appear to be accidental. Jeffrey was examined on November 16, 2001, by Richard C. Trump, a Child Protection Team medical doctor of the University of Florida.1 Dr. Trump's report reads in part: . . . on the buttocks there are some fairly fresh vertical and linear 1mm wide bruises which are external to the buttock crease. There is a 7x3cm bruise on the left buttock below the aforementioned linear bruises, which ends in a circular bruise at the lower left buttock. The thin linear bruises come together perfectly when the buttocks are compressed flat. All of the bruises are fairly superficial and are red and blue in color; no yellow or green is present. There are no bruises medial to the linear bruises in the crease of the buttocks. Mrs. Stone first observed the bruise the morning of November 16, 2001. Mrs. Stone did not report the bruise to the Department. Jeffrey generally attended daycare from seven or eight o'clock in the morning until 5:30 or 6:00 in the evening. Jeffrey attended day care on November 16, 2001. Mrs. Stone conceded that the bruise could not have happened at the daycare center because she observed the bruise the morning of November 16, 2001, before Jeffrey attended the center. According to Mrs. Stone, Jeffrey wore a brace on his leg which caught on the crib a couple of days before the incident. This, however, would not explain a fresh bruise as described by Ms. Lycett and supported by Dr. Trump's report. Likewise, the other foster children could not have caused the bruise as they were removed from the home four days prior to the incident in question. While the evidence did not prove that Mrs. Stone directly caused the injury, the evidence did prove that the child suffered harm while in the custody and control of Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Children and Family Services enter a final order revoking the foster care license of the Stones. DONE AND ENTERED this 16th day of August, 2002, in Tallahassee, Leon County, Florida. 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 16th day of August, 2002.
The Issue Should the Petitioner, Nikki Henderson, d/b/a Henderson Family Day Care Home, be granted a license to operate a family day care home pursuant to section 402.313(3), Florida Statutes (2015)1/ because she does not satisfy the screening provisions of sections 402.305(2) and 402.3055?
Findings Of Fact Ms. Henderson is the mother of four children. She has been a good parent, seeing to their education. She volunteers as the minister of music in a church. She has also taken college courses. Ms. Henderson wants to start a family day care center. On September 12, 2014, the Department granted Ms. Henderson an exemption from disqualification from working with children and other vulnerable populations due to a criminal conviction. This means that just over a year before the hearing, the Department determined that Ms. Henderson proved by clear and convincing evidence that she was rehabilitated and should not be disqualified from employment. § 435.07, Fla. Stat. In the exemption process, the Department could consider the person’s history since the disqualifying criminal offense and “any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed.” § 435.07(3)(a) Fla. Stat. A family day care home is an occupied residence, in which child care is regularly provided for payment. The children served under the age of 13 and from at least two unrelated families. § 402.302(8), Fla. Stat. The Department is the licensing authority for family day care homes. It considers an applicant’s criminal history, as well as any reports concerning abuse or neglect maintained in the Department’s statewide database, Florida Safe Families Network (FSFN), formerly known as HomeSafeNet, in licensing decisions. The Department received Ms. Henderson’s completed application to operate a family day care home on June 25, 2015. By letter dated September 2, 2015, and served September 4, 2015, the Department announced its intent to deny the application based upon two verified reports of inadequate supervision of her children and three reports of complaints all closed with “no indicators” or “not substantiated” conclusions. The reports named Ms. Henderson as the caregiver responsible for the children involved. When using either HomeSafeNet or FSN, investigators input information as they collect it. But they do not input all of the information immediately. The information is much more than what the investigators have observed. Most of the information is recitations of statements of others about what the others observed. The FSFN and HomeSafeNet databases contain records of the following reports involving Ms. Henderson: 1999-089863-01 (Ex. C), 2002-136612-01 (Ex. D), 2004-420815-01 (Ex. E), 2005- 323618-01 (Ex. F), and 2012-126218-01 (Ex. G). These are the reports that the Department relies upon to support denying Ms. Henderson a license. The reports set forth activities of the agency’s investigators, stating what they did. What the investigators did was interview people and report what those people said or what they said someone else said. The reports contain very little directly observed by the reporters. The information contained in the reports that the Department relies upon is largely hearsay or hearsay reports of hearsay. The reports consist mostly of summaries of records reviewed by the reporter or summaries of statements by other individuals. They are not reports of information about which the reporter has direct knowledge. The reports do not identify who the investigator obtained the information from. In short all of the statements in Respondent’s Exhibits C through G about anything Ms. Henderson did or did not do are hearsay recitations of statements made to and summarized by the reporters or summaries of documents reviewed. §§ 90.801 & 90.802, Fla. Stat. Hearsay alone cannot support a finding of fact. § 120.57(1)(c), Fla. Stat. The reports also are not competent or persuasive evidence that the assertions in them are accurate. Ms. Henderson disputes the reports. Her live testimony, subject to cross examination, is more persuasive than the words of the reports. The reports do not satisfy the requirements for the business record hearsay exception of section 90.803(6), or the public record exception of section 90.803(8). See, e.g., Lee v. Dep't of HRS, 698 So. 2d 1194, 1200 (Fla. 1997) (investigative report of pregnancy of woman with a disability residing in a state facility not subject to the public record exception). See also, Brooks v. State, 918 So. 2d 181, 193 (Fla. 2005), cert. den., Brooks v. Fla., 547 U.S. 1151, 126 S. Ct. 2294, 164 L. Ed. 2d 820 (2006); M.S. v. Dep't Child. and Fams., 6 So. 3d 102 (Fla. 4th DCA 2009). Application of the hearsay rule is no mere legal technicality. The hearsay rule is one of the oldest and most effective means of ensuring decisions that determine people's lives and fortunes are based on reliable information. Florida's Fifth District Court of Appeal described the importance of the rule as follows: Rules governing the admissibility of hearsay may cause inconvenience and complication in the presentment of evidence[,] but the essence of the hearsay rule is the requirement that testimonial assertions shall be subjected to the test of cross examination. 5 Wigmore on Evidence, § 1362 (Chadbourne Rev. 1974). As stated by Professor Wigmore, the hearsay rule is "that most characteristic rule of the Anglo- American law of evidence -- a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world's methods of procedure." 5 Wigmore on Evidence, at § 1364. Dollar v. State, 685 So. 2d 901, 903 (Fla. 5th DCA 1996). A complaint on July 18, 1999, triggered the investigation resulting in Report 1999-089863-01 (update date November 16, 2000). (Dept. Ex. C). The report summarizes the investigation of an allegation that Ms. Henderson (then Nikki Stanley) “left [her child] Deuteronomy in his carrier sear [sic] on the steps of the alleged Dad’s home,” knocked on the door and drove away. The allegations continue that the adults were inside and that the alleged father’s mother found the child on the steps. Ms. Stanley, who testified and was cross-examined at the hearing, went with Ms. Henderson to leave the child at the father’s home. Ms. Stanley personally placed the child in the hands of an adult at the house. Ms. Stanley and Ms. Henderson also delivered Pampers and milk. Ms. Henderson’s credible and consistent position has always been that she did not leave the child unattended at the house where the child’s father lived. The testimony of Ms. Stanley and Ms. Henderson is consistent with some statements in the report and more credible and persuasive than the allegations recited in the report. The Department closed the investigation with verified findings of inadequate supervision and no indicators of physical injury. The Department did not provide Ms. Henderson an opportunity for a hearing to contest the findings. The Department filed a dependency petition against Ms. Henderson because of the report. It gave her a case plan, requiring the provision of protective services supervision by the Department. The Department did not remove the child from Ms. Henderson’s care. The Department did not prove by the preponderance of the evidence that Ms. Henderson left Deuteronomy alone on the steps on July 18, 1995. She did not. Report number 2002-136612-01 chronicles the investigation of allegations received on August 23, 2002, described as “Physical Injury,” Substance Exposed Child,” “Inadequate Supervision,” and “Environmental Hazards.” (Dept. Ex. D). The report is a confusing document and contains no information about environmental hazards or a child being exposed to a substance. It is not a credible report of anything involving alleged harmful conduct by Ms. Henderson or conduct endangering a child. In fact although the case started as an investigation of her, it ended with the suspected father of the child identified as the possible perpetrator, not Ms. Henderson. Representative paragraphs are reproduced here. ALLEGATION NARRATIVE: ON A RECENT NIGHT, THE MOTHER BROKE WINDOWS AND CAUSED PROBLEMS AT THE HOME OF THE ALLEGED PATERNAL GRANDMOTHER, BARBARA BROWN, WHERE GEORGE [the child apparently involved] WAS AT THE TIME. THIS OCCURRED ABOUT 3:00 A.M. MOTHER HAD CALLED THE ALLEGED FATHER, ALVIN WALLACE (MS. BROWN’S SON/NO DNA TEST DONE YET TO DETERMINE PATERNITY), EARLIER IN THE EVENING. SHE TOLD HIM SHE WAS GOING TO JAIL, AND SHE TOLD HIM TO GET GEORGE, WHICH HE DID AT 3:00 A.M., MOTHER SHOWED UP WANTING GEORGE. LAW ENFORCEMENT WERE CALLED. THEY ADVISED THE MATERNAL GRANDMOTHER, SHARON STANLEY, TO LET MR WALLCE AND MS. BROWN KEEP GEORGE. MOTHER AND GEORGE LIVE AT ADDRESS A WITH THE MATERNAL GRANDMOTHER, ABOUT WHOM CONCERN WAS EXPRESSED BECAUSE SHE HAS SEIZURES. PATERNAL GRANDMOTHER HAS NOW GOTTEN AN INJUNCTION AGAINST MOTHER. MOTHER DID NOT HAVE TO GO TO JAIL. ITS UNKNOWN WHY SHE THOUGHT SHE HAD TO GO. MOTHER’S LIFESTYLE AND BEHAVIOR ARE SAID TO BE ““QUESTIONABLE.”” MS. BROWN AND MR. WALLACE LIVE AT ADDRESS B. 24 HOUR. ALLEGATION NARRATIVE: RIGHT NOW, GEORGE IS AT THE HOME OF THE ALLEGED PATERNAL GRANDMOTHER, BARBARA BROWN, ADDRESS B. NO DNA TEST HAS BEEN DONE. SO IT HAS NOT BEEN DETERMINED TH[A]T MS. BROWN’S SON IS GEORGE’S FATHER. GEORGE SPENT THE WEEKEND AT MS. BROWN’S HOME, AND MS. BROWN NOW REFUSES TO GIVE GEORGE BACK TO THE MATERNAL GRANDMOTHER. ALLEGATION NARRATIVE: MR. WALLACE SHOOK GEORGE TODAY AROUND 7 PM. MR. WALLACE WAS OUTSIDE WITH GEORGE. GEORGE WAS CRYING. MR. WALLACE THREW GEORGE INO THE HAIR [SIC] AND SHOOK HIM. IT IS UNKNOWN IF GEORGE SUFFERED ANY INJURIES AFTER BEING SHOOK. MR. WALLACE HAS A HISTORY OF SELLING AND USING COCAINE AND MARIJUANA. HE WILL SELL THE DRUGS FROM HIS HOME AND ON THE STREETS. IMMEDIATE. INVESTIGATIVE DECISION SUMMARY: BACKGROUND INFORMATI0N: THE FAMILY HAS ONE PRIOR FROM 1999 WHERE PROTECTIVE SERVICES WERE INVOLVED DUE TO VERIFIED INADEQUATE SUPERVISION. ADJUDICATION WAS WITHELD [sic]. THE MOTHER AND HER TWO CHILDREN INVOLVED IN THE PRIOR LIVE WITH THE GRANDPARENTS AND THE NEW BABY IN LAKELAND. PS CLOSED IN 2001. THE MOTHER HAS A CRIMINAL HISTORY THAT INCLUDES A BATTERY CHARGE FROM 2002. CONCERNS OVER THE ALLEGED FATHER ALVIN WALLACE. DUALING [sic] INJUNCTIONS SUBJECT INFORMATION: THE CASE APPEARS TO BE CUSTODY RELATED. THERE WERE CONCERNS OVER THE ALLEGED FATHER ALVIN WALLACE. DUALING [sic] INJUNCTIONS BETWEEN MOM AND PROSPECTIVE FATHER WERE FILED AND BOTH DISPUTED OVER THE CUSTODY OF THE CHILD. JUDGE SMITH GRANTED AN INJUNCTION AGAINST THE ALLEGED FATHER AND GAVE CUSTODY TO THE MOTHER. LATER, THE RESULTS OF THE DNA SCREEN SHOWED THAT MR. WALLACE WAS NOT THE FATHER. HE IS NO LONGER A THREAT AND DOES NOT HAVE CONTACT WITH THE BABY. SHAKING OF CHILD ALLEGATION WAS BOGUS. LEGAL CONTACT: JUDGE SMITH OF D/V COURT GAVE CUSTODY TO MOM AND GRANTED INJUNCTION AGAINT MR. WALLACE WHO TURNED OUT NOT TO BE THE FATHER AFTER A DNA TEST. FAMILY AND COMMUNITY SUPPORT: MOM HAS DV INJUNCTION AND FAMILY SUPPORTS. SERVICES AND REFERRALS: I.E NOTIFIED. CASE APPEARS TO HAVE BEEN CUSTODY RELATED. MR. WALLACE WAS LATER PROVED NOT TO BE THE FATHER AND NO LONGER HAS ANY CONTACT OR RIGHTS TO THE CHILD WHO LIVES WITH THE MOTHER, GP’S AND OTHER SIBLINGS. HE IS NO LONGER A POSSIBLE THREAT TO THE CHILD. CLOSE CASE AS BACKLOG. CONVERTED ICSA SAFETY ASSESSMENT 06/15/2006 *ICSA INITIAL OVERALL SAFETY ASSESSMENT* RISK IS LOW. ALLEGED PERP [Mr. Wallace] WAS DETERMINED NOT TO BE THE DAD AND IS NO LONGER HAVING CONTACT WITH CHLD. *ICSA UPDATED OVERALL SAFETY ASSESSMENT* RISK IS LOW: ALLEGED PERP WAS DETERMINED NOT TO BE THE DAD AND IS NO LONGER HAVING CONTACT WITH CHILD. The Department closed the investigation with no indicators for any of the alleged mistreatment. The report did not conclude that Ms. Henderson acted improperly or did not act when she should have. The Department initiated case number 2004-420815-01 on September 29, 2004, in response to an allegation that Ms. Henderson was leaving her four children at home alone at night. (Dept. Ex. E). At the conclusion of the investigation, the Department determined that there were no indicators of inadequate supervision. The summary concluded: “The Mother has made adequate arrangements for the children while she works thus not causing a concern for safety and/or permanency.” On February 8, 2005, the Department received a complaint alleging that Ms. Henderson was leaving the children at home alone and coaching them to tell people that she was home, but asleep. The Department started an investigation resulting in report number 2005-323618-01 (Dept. Ex. F). The Department closed this investigation with verified findings of inadequate supervision. It filed another dependency petition to obtain court-ordered protective services supervision. The court ordered a case plan that included a requirement to complete a parenting program. During this open case, Ms. Henderson demonstrated some lack of responsiveness to the Department’s preferred eight-week in-home parenting program. She took a one-day program at the Polk County Courthouse instead. The court, whose order Ms. Henderson was to comply with, accepted this class as satisfying the parenting program, over the Department’s objection. Basically the Department is second-guessing the court’s ruling and treating Ms. Henderson as if she had not met the court’s requirements when she did. On May 31, 2012, Ms. Henderson reported to the Department that a school intern inappropriately touched the breasts of Ms. Henderson’s 14-year old daughter. This initiated report number 2012-126218-01. (Dept. Ex. G). Ms. Henderson was not the subject of the investigation. The intern was. Ms. Ebrahimi was the child protective investigator supervisor at the time of this report. She has personal knowledge of some of the facts in that report and testified about them. Ms. Henderson was very upset about the incident. She acted vigorously and promptly to protect her daughter. Ms. Henderson immediately picked up her daughter and reported the incident to the Department and the school. She insisted that the school remove her daughter from the intern’s class. She also arranged for her daughter to attend a different school the next year. Only one week was left in the current school year. She obtained a temporary injunction against the intern. Ms. Henderson also sought to obtain a permanent injunction to protect her daughter. Ms. Henderson did everything lawful that a loving protective parent could do for her child. The day after the incident Ms. Henderson spoke to Detective Rose. He told Ms. Henderson that the authorities did not perceive sufficient evidence to take actions to protect her daughter, including obtaining an injunction. Even Ms. Ebrahimi concedes that Ms. Henderson was very cooperative with the Department and protective of her child. Ms. Ebrahimi faults Ms. Henderson for, in Ms. Ebrahimi’s view, not following through on the permanent injunction and failing to return phone calls from the Department’s investigator. Ms. Henderson did not receive calls or messages from the investigator. Ms. Ebrahimi does not have personal knowledge of whether the investigator called Ms. Henderson. Ms. Henderson’s testimony about not receiving calls from the investigator is more credible and persuasive than the cryptic notes in the report. Ms. Henderson’s actions were entirely reasonable and protective of her daughter. A person in authority told her that she could not obtain an injunction. So she took no further actions on that front. Ms. Henderson acted immediately to have the offender removed from contact with her child. She arranged for her child to be transferred to a different school. The Department’s investigative summary itself shows the reasonableness of Ms. Henderson’s actions and the difficult circumstances she faced, including a lack of support from responsible authorities, when her 14-year-old daughter reported an intern fondling her breasts at school. The report says: The child states that the intern touched her breast. She disclosed that she told the teacher who did nothing about it. Stated she also told her mother who made a report to law enforcement. The intern is no longer in the child’s classroom but is still at the school per the mother. CPI to update as more information is received. UPDATE: Risk low. Several statements in the report substantiate Ms. Henderson’s recall of events and buttress the determination that she is more persuasive than the document. It also demonstrates that the alleged calls were for the bureaucratic process of closing the case, not furthering the investigation to protect Ms. Henderson’s daughter. In addition, it is difficult to imagine what additional information the DCF investigator could obtain from Ms. Henderson. She had already told DCF all she knew about the assault. The summary also supports Ms. Henderson’s testimony that a police officer told her the police would not pursue the case. It states: “Other children reportedly also reported witnessing, then recanted to Lakeland Police Detective. Lakeland Police not pursuing further, did not find alleged victim credible.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Children and Families, enter a final order granting the application of Petitioner, Niki Henderson d/b/a Henderson Family Day Care Home, to operate a family day care home. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2016.
The Issue Whether Petitioner should be granted an exemption from disqualification pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: In July 2001, Petitioner and his wife filed an application with the Department for a license to operate a family day care home. As part of the license application process, Petitioner was required to undergo background screening. The screening process was conducted in August 2001, and through that process, the Department obtained documents showing numerous criminal charges against by Petitioner between 1992 and 1997. The charges included driving under the influence, aggravated battery, aggravated assault with a firearm, armed robbery, and grand larceny. On August 30, 2001, the Department informed Petitioner that he was ineligible for employment in a position of trust working with children because of two disqualifying offenses identified through the background screening process, i.e., “larceny general – felony” and “robbery with firearm.” The letter identifies the date of the offenses as February 13, 1997. That date corresponds to the date that Petitioner was arrested on the charge of conspiracy to commit armed robbery. The case number for that offense was CR97-1756. On March 5, 1997, the State Attorney for the Ninth Judicial Circuit (State Attorney) filed a "No Information Notice" in case number CR97-1756 because the "case [was] not suitable for prosecution [because the] evidence submitted by [the] law enforcement agency [was] insufficient to prove guilt beyond a reasonable doubt." On March 11, 1997, while Petitioner was still in custody, the State Attorney filed charges against Petitioner in two separate cases. In the first case, number CR97-1735, Petitioner was charged with one count of robbery with a firearm (with a mask), three counts of aggravated assault with a firearm (with a mask), and one count of grand theft third degree. The offenses allegedly occurred on January 22, 1997. In the second case, number CR97-1736, Petitioner was charged with one count of attempted robbery with a firearm (with a mask). The offense allegedly occurred on January 31, 1997. On July 25, 1997, Petitioner accepted a plea bargain to resolve both of the cases. In case number CR97-1735, Petitioner pled guilty to grand theft, third degree. In case number CR97- 1736, Petitioner pled guilty to the lesser included offense of attempted robbery. In exchange, the State Attorney filed a nolle prosequi as to the other counts in case number CR97-1735, and Petitioner was sentenced to time served (163 days), placed on probation for two years, and assessed court costs and fines of approximately $800. The circumstances surrounding the offenses are not entirely clear. The credible evidence indicates that Petitioner and two of his friends (Jimmy Briggs and Jermane Dixson) fit the description of persons involved in a series of robberies in late January 1997, and an aborted robbery attempt on February 13, 1997. In this regard, the arrest report states: On 2-13-97 at 0329 hours, encountered three individuals, who had just plotted to commit an armed robbery. There was a sawed off shotgun, a toy gun, binoculars and several articles of clothing recovered from their vehicle. There was also another gun and a black shirt recovered from the residence of Jimmy Briggs. All three defendants confessed to planning the robbery and almost carrying it out, but got on the scene and changed their minds. Defendant Bryant Lee did confess to an armed robbery, that he said that he and defendant #2 (Briggs) and #3 (Dixson) participate [sic] in. [Lee] said it occurred at the Food Lion on Oakridge Rd. but would not be specific on the time, however indicated about three weeks ago. Defendant #2 (Briggs) and #3 (Lee) both confessed to plotting a robbery tonight and both wrote sworn statement [sic] to this effect. Despite his confession and his subsequent guilty pleas, Petitioner continues to deny any involvement in the crimes. He testified at the hearing that he was a victim of circumstances and poor judgment through his association with a bad crowd of friends. Petitioner further testified that he only agreed to the plea bargain because he wanted to get out of jail and go home to his son. In addition to the two cited disqualifying offenses, the record reflects that in December 1996, Petitioner pled nolo contendre and was adjudicated guilty of discharging a firearm in public, a misdemeanor. Petitioner was sentenced to time served (1 day) and assessed costs in the amount of $115. Petitioner was 24 years old at the time of his arrest in 1997. He is now 29 years old, and by all accounts, he has begun to turn his life around. He successfully completed his probation on July 24, 1999. He has not been charged with any criminal offenses since his 1997 arrest, and he has not even received a traffic citation. Petitioner has been married to his current wife for the past three years. They have two children together, and his wife's nine year-old daughter, Keyanna, also lives with them. Petitioner shares custody of his six year-old son from a previous relationship, and he is “getting current” on his child support obligation for that child. Petitioner is currently unemployed, but over the past five years he has worked as a chef in various restaurants. Petitioner testified that he is no longer working as a chef because he feels that his calling is to work with children in his community to steer them away from the path of criminal activity with which he was associated in his youth. The record includes glowing character references for Petitioner. One reference describes him as “a well rounded good hearted person, and one of the nicest people I know.” Another reference details Petitioner’s active participation in Keyanna’s school and states that he “has proven to be a model parent.” In November 2001, Petitioner successfully completed the 30-hour Family Child Care Training Course developed by the Department pursuant to Sections 402.305(2)(d), Florida Statutes, and Rule 65C-22.003, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 14th day of May, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 14th day of May, 2002. COPIES FURNISHED: Richard B. Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Bryant L. Lee 725 Grand Street 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 204B Tallahassee, Florida 32399-0700
The Issue Whether Respondent violated Subsection 490.009(2)(v), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Blank is a psychologist, licensed by the Department. In 1998, Susan Whittaker (Whittaker) and James Fischer (Fischer) were parties to a dissolution proceeding. The divorce was very acrimonious. Anne Alper (Alper) was appointed as a guardian ad litem to protect the interests of the couple's children during the divorce. Because of the animosity between Whittaker and Fischer and the difficulty they were having with their children, the presiding judge, Judge Ziedwig, requested that Alper determine what was in the best interests of the children. Alper effectuated an agreement between the couple, which included the following provision: The mother agrees to participate independently in counseling using the same counselor as James for the purpose of maximizing the parents' effectiveness in communication and parenting under the shared parental responsibility agreement. The agreement was signed by Whittaker, Fischer, and their attorneys. The agreement was presented to Judge Ziedwig, who indicated that he did not want to see the couple again until they had participated in the parent effectiveness training. Blank had experience in conducting parent effectiveness training. For a couple of years, she held classes in which more than one couple attended. She used a manual and tapes which had been developed by two psychologists. The attendees in the classes had no expectation that the classes would be confidential. As the number of class participants dwindled, Blank found it more cost effective to present the parent effectiveness training to individual couples. Alper called Blank to see if she would be willing to provide parent effectiveness training for Whittaker and Fischer. Alper agreed to do so. Whitakker understood that her attendance for the sessions with Blank was not voluntary and that she had been ordered by the judge in her dissolution proceeding to attend. The initial session was held on August 20, 1998, at Blank's office. Whittaker and Fischer attended. The purpose of the session was to teach Whittaker and Fischer how to parent their children effectively, not to provide psychotherapy for either Whittaker or Fischer. At the beginning of the session, Blank informed the couple that it was her understanding that the couple were involved in the parent effectiveness training by order of the court. Additionally, Blank advised them that the sessions were not confidential and that she would be reporting to the guardian ad litem, the court, and the attorneys for the parties. After being informed that the sessions were not confidential, Whittaker and Fischer continued with the training session. At the end of the session, Whittaker informed Blank that she would not be returning to another session. Whittaker was not satisfied with the training and felt that Blank should be dealing more with Fischer's past history of domestic violence. Blank advised Whittaker that because the divorce case was on hold until the parents received parent training, she would have to notify the court, the guardian ad litem, and the attorneys on the case that the sessions were not progressing. Blank told Whittaker that she would give Whittaker some time to think about whether she wanted to return for more training. Fischer continued to see Blank for training sessions, but Whittaker never returned. Whittaker called Blank and asked her what was the procedure to release information, and Blank told her to write a letter stating specifically to whom Whittaker wanted the information released. Whittaker hand delivered a letter to Blank, stating that she wanted Blank to release information to her attorneys, Elise Lucas and Robert Merlin. After Blank received the letter, she spoke with Ms. Lucas by telephone and informed her about the training session. In September 1998, Fischer asked Blank to send a letter to his attorney to update him on the progress of the training sessions. Blank told Fischer that she would need a letter from him to release the information. Blank felt that since she had a letter from Whittaker on the release of information that she should also have one from Fischer. Fischer provided the letter. On October 1, 1998, Blank wrote a letter to Fischer's attorney, John Stedman, advising that Whittaker had refused to attend further sessions after the initial meeting in August. Blank also described Whittaker's behavior during the session and recommended psychological evaluation for Whittaker and her son. Neither the court nor Whittaker's attorneys were copied with the letter. Blank thought that she had provided Alper with a copy of the letter, but she could not remember if she had. On October 19, 1998, Fischer filed a motion to permit Blank to testify by telephone in the divorce proceeding. The court entered an order on the same date, stating: ORDERED AND ADJUDGED that said Motion be, and the same is hereby denied. Based on representation of counsel for the Former-Wife that she met with Diane Blank in her capacity as a psychotherapist and the Former-Wife is invoking her psychotherapist-patient privilege, Diane Blank shall not testify in any way. No sworn testimony was heard by the court in ruling on whether a psychotherapist relationship existed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Diane P. Blank did not violate Subsection 490.009(2)(v), Florida Statutes. DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2000. COPIES FURNISHED: Mary Denise O'Brien, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 James B. Meyer, Esquire 111 West Bloxham Street Tallahassee, Florida 32301-2308 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Dr. Kaye Howerton, Executive Director Board of Psychology Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue for determination is whether Respondent properly denied Petitioner's application for renewal of her family child care home license.
Findings Of Fact Respondent, the Department of Children and Family Services (Department), issued a family child care home license to Vernetta Rossi (Petitioner) on January 15, 2001. The license was effective for a year, and automatically expired one year later. The maximum number of children for which Petitioner was licensed was ten. On or about November 11, 2001, Petitioner submitted an application for renewal of her family child care home license. On December 4, 2001, Donna Richey, an inspector with the Department went to Petitioner's home to conduct a re- licensing inspection. The purpose of the inspection was to determine if Petitioner was complying with the licensing rules and to make a recommendation on Petitioner’s application for renewal. Ms. Richey arrived at Petitioner’s house at about 1:30 p.m. Through a pane glass window, Ms. Richey observed a child sleeping on a mat in the dining room hall area. She also heard a child whimpering. Because Ms. Richey knew that there were children in the house and it was naptime, she knocked softly on the door for a few minutes. After getting no answer, Ms. Richey rang the doorbell twice, but still received no answer. After there was no response to Ms. Richey’s knocking on the door and ringing the doorbell, she walked to the back of Petitioner’s house, thinking that Petitioner may have been out in the back of the house. Finding no one there, Ms. Richey then returned to the front of the house and rang the doorbell again. When Ms. Richey returned to the front of the house, she observed that the child on a mat in the dining room hall area was still asleep. Upon returning to the front of the house, Ms. Richey tried the front door handle and discovered that it was unlocked. Ms. Richey then entered the house where she observed Petitioner asleep on the couch in the family room. Ms. Richey then called Petitioner, who woke up and appeared startled. Petitioner had dozed off and advised Ms. Richey that the reason she may not have heard the doorbell ring or the knock on the door was that she had a hearing loss and was lying on her “good” ear. Ms. Richey and Petitioner then toured the areas of Petitioner’s house where the five children, in Petitioner's care that day, were down for their naps. At the time of the tour, all five of the children, who were ages three and four, were in their designated napping areas and on their mats. One child was asleep on a mat in the dining room hall area; two children were on separate mats in one bedroom; one child was on a mat in the hallway; and another child was sleeping in the classroom area. During the time Ms. Richey was at Petitioner’s house for the re-licensure inspection, none of the children were crying, all the children were clean, and Petitioner’s house was neat and clean. There was a fence around the children’s playground in Petitioner's backyard. The fence had been approved by the Department as part of the licensure process. Also, there was a lock on the back door of Petitioner's house that was placed at a height that was not within the children's reach. There was a canal behind Petitioner’s house, which was about 60 yards from the house. In addition there was a five- foot high chain link fence that extended across the back of Petitioner’s property that served as a barrier between Petitioner’s yard and the canal. The fence provided a barrier that made it impossible for the children to easily access the canal. However, the Department determined that the canal was a potential hazard for the children in Petitioner’s care, when she was asleep and the front door of the house was unlocked. There was a main road within the subdivision in which Petitioner's house was located that was about 100 yards from her house. The Department was concerned that because Petitioner’s front door was unlocked and Petitioner had dozed off, the main road could have been a possible hazard to the pre-school children. During the approximately ten minutes that Petitioner was asleep, the children in her care were not being supervised. The Department requires that individuals licensed to provide child care supervise the children in their care. Following the Department’s re-licensing inspection on December 4, 2001, a report of neglect was made and an investigation was conducted. The results of that investigation and the findings and conclusions thereof are summarized in Abuse Report 2001-194692 (abuse report), which was completed on or about December 21, 2001. The abuse report found that on December 4, 2001, Petitioner fell asleep for a few minutes after she had put the five children in her care down for their afternoon nap and that during the time Petitioner was asleep, the children were not supervised. With regard to observations of Petitioner's “day care center,” the investigator noted in the abuse report that Petitioner’s home was “very clean and well kept” and “hazard free” and that there were no hazards observed in the home. Based on the findings of the investigator, relative to Petitioner’s falling asleep, the case was “closed with verified findings of neglect due to inadequate supervision with caretaker present.” The abuse report notes that officials closed Petitioner's facility on or about December 5, 2001. In addition to the incident that occurred on December 4, 2001, the abuse report referred to alleged incidents that took place prior to Petitioner’s being licensed in January 2001. These alleged incidents are not relevant or material to this proceeding in that they were not stated in the January 9, 2001, denial letter to Petitioner as the basis for the Department’s decision to deny Petitioner’s application for renewal of her family child care home license.1 The Department’s January 9, 2002, letter denying Petitioner’s application for renewal of her family child care home license stated in relevant part the following: This letter is to advise you that your application to renew your family day care license, dated November 11, 2001, is denied. In accordance with Section 402.310(10)(a), Florida Statutes, the department may deny a license for the violation of any provision of Sections 402.301-402.319, Florida Statutes, or rules adopted thereunder. The decision is based on the fact that abuse report number 2001-194692 indicates you have a verified report of child neglect for inadequate supervision-caretaker present. On December 4, 2001, during a re-licensing inspection, you were found to be asleep while five children ages, 3 years to 4 years, were in your care. This is in violation of Section 65C-20.009(3)(a), Supervision by Staff, Florida Administrative Code. This states[,] “At all times which includes when children are sleeping, the operator shall remain responsible for the supervision of children in care and capable of responding to the emergencies and needs of children. During the daytime hours of operation, children shall have adult supervision which means watching and directing children’s activities, both indoors and outdoors, and responding to each child’s needs.” Additionally, your actions were in violation of Section 402.301, Florida Statutes, which express [sic] the intent of the Florida Legislature to protect the health, safety, and well being of the children of the state and to promote their emotional and intellectual development and care. Petitioner does not dispute that she dozed off a few minutes on December 4, 2001, but testified credibily that this was an isolated incident. This is substantiated in a letter of support from Cynthia Ray, a former employee of Petitioner who worked at the center. Ms. Ray also served as a substitute for Petitioner and was listed on Petitioner's family child care home license as such. The letter from Ms. Cheryl Ray states that Petitioner has a high energy level, seldom sits down for any length of time, and is always "preparing, cleaning, organizing and doing book work." According to Ms. Ray's letter, it "was out of character for [Petitioner] to fall asleep" while the children were napping or at the center. With regard to the front door being unlocked, Petitioner explained that over the years, the policy or practice of the Department has changed. Petitioner was aware that at one time, the Department required that the door of a child care facility be unlocked so that parents could come in unannounced. Apparently, the Department’s current policy or procedures require that the doors of a child care facility be locked. In light of the policy, Petitioner stated that she would ensure that the doors of her family child care home would be locked. Petitioner has a combined 30 years of experience as a teacher and a principal in Montessori schools. At the time she was licensed by the Department, Petitioner used the Montessori method of instruction and had her home set up consistent with this approach. Parents of children who have been cared for by Petitioner expressed satisfaction, trust, and confidence in Petitioner’s ability to care for their children. They also believe that she has had a positive influence on the children's intellectual and emotional well-being. Many of the parents who testified had several years of experience working with Petitioner as the child care provider for their children. The parents believe that the educational program provided to their children while they were in Petitioner’s care is exceptional. Those parents whose children have left Petitioner’s program to attend kindergarten believe that the educational program provided by Petitioner prepared the children for kindergarten and made the transition to school easier for them. Parents who have had children in Petitioner’s care over the years and up until December 2001, have “dropped in” Petitioner’s home during the day when children were in her care and have never seen anything “amiss” or of concern to them. Parents who have had children in Petitioner's care testified credibly that Petitioner never neglected their children and that they felt their children were safe at Petitioner’s home and not in any danger. Despite the incident that occurred on December 4, 2001, the parents who testified at hearing continue to trust Petitioner to care for their children. The four-year-old daughter of Kevin and Rachel Walsh attended Petitioner's center from the time she was four weeks old, until the center closed in December 2001. The Walshes also have an older son who attended Petitioner's center for four years. During the time Petitioner has been caregiver for their children, the Walshes have been very pleased and satisfied with the care and the education that Petitioner provided to the children. For the past six years, Mrs. Walsh has dropped in unannounced at Petitioner's center and has been satisfied with what she has observed. According the to the Walshes, when in Petitioner's care, their children were in a "clean, safe, happy and learning environment" and learned "not only reading, writing, and math, but also manners and respect." The Walshes indicated that "those qualities make it comfortable for us to relax at our jobs knowing our kids are comfortable and happy." The Walshes live in the same neighborhood as Petitioner and, like Petitioner, they also have a canal behind their house. Because there is a fence which serves as a barrier between Petitioner's yard and the canal, the Walshes do not believe the canal was a hazard for children at Petitioner's center on December 4, 2001, or at any other time. On the day of the re-licensure inspection, the Walsh's daughter was not at the center. Nonetheless, the Walshes expressed utmost confidence in Petitioner to care for their daughter. Since Petitioner's center has been closed, the Walshes have not placed their daughter in another center. It is their desire to return their daughter to the care of Petitioner. Keith and Sharon Delafield's daughter was in the care of Petitioner on the day of the re-licensure inspection and had been in Petitioner's care for about three years. Mr. Delafield testified that during the time that his daughter attended the center, he visited the center, was satisfied with the care his daughter received, and always found the home to be neat and clean. Mr. Delafield believes that his daughter was the child who was whimpering on the day of the re-licensure inspection because she does not like to take naps. However, Mr. Delafield does not believe that she would have gone out of the house without permission of Petitioner. Moreover, despite the events of December 4, 2001, the Delafields trust Petitioner "whole heartedly" with the care of their daughter. According to the Delafields, during the time that their daughter was in the care of Petitioner, there was not a day that she "came home unfed, unclean, untaught, or unloved." Mr. and Mrs. Delafield, are planning to have another child and when they do, it is their desire to place the child with Petitioner. Valerie Senden has had two children attend Petitioner's center even though it is a 30 to 40 minute drive from her house. Ms. Senden's decision to place her children with Petitioner was made after she visited six other centers, all of which she found unsatisfactory. The basis of her dissatisfaction was her observation of the way that children were treated at those centers. During the time that Ms. Senden's children attended Petitioner's center, Ms. Senden made unannounced visits to the center and also spent the day and various parts of the day at the center helping Petitioner. During these visits, Ms. Senden never saw anything that caused her to be concerned about Petitioner's care of the children. Had Ms. Senden seen anything she didn't like or that she believed to be improper, she would have "pulled her children out of the center." Since Petitioner's center was closed, Ms. Senden has not placed her children in another center. Diann Myrick has a son who attended Petitioner's center from about August 2001 until it was closed in December 2001. Ms. Myrick does not believe that her child was ever neglected by Petitioner and is completely satisfied with the care that he has received from her. Moreover, Ms. Myrick testified that every time that she has come to the center to pick up her son, the door is always locked. According to Ms. Myrick, with Petitioner's guidance, her son is learning discipline as well as receiving an education. Ms. Myrick believes that these are things that she has been unable to find in private day care centers. With regard to Petitioner, Ms. Myrick testified that Petitioner is a good caregiver, and that both the children and the parents love Petitioner. Ms. Myrick testified that she wants to put her son in Petitioner's center when and if it is re-opened. Eight letters of support for Petitioner substantiate the testimony at hearing. In these letters, parents whose children have been in the care of Petitioner describe her as "a wonderful teacher and caregiver," an individual who is "honest, competent, and genuine," and a "teacher with compassion, care, and respect for others." Petitioner's center is described as being "not just clean, but immaculate." The parents expressed satisfaction with the education and care that Petitioner provided to their children; indicated that they trust Petitioner to care for their children; and believe it would be a disservice to the children, the parents, and the community to refuse to allow Petitioner to re-open her center.
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 that denies Petitioner's application for renewal of her family child care home license without prejudice to her right to re-apply for such license in the future. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 11th day of July, 2002.
The Issue The issue is whether Petitioner should be granted an exemption from employment disqualification pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact Petitioner is forty-three years old. His wife, Margaret Bryant, has applied for a license to operate a family day care home. In March 1987, a law enforcement officer detained Petitioner on suspicion of robbery, placed Petitioner in the backseat of a patrol car, and transported him to the police station. Petitioner was the last person to ride in the patrol car before the law enforcement officer found cocaine in a matchbox in the back seat of the patrol car. Subsequently, Petitioner was arrested and charged with robbery and possession of cocaine. In April 1987, Petitioner pled guilty to aggravated assault pursuant to Section 784.021, Florida Statutes, and possession of cocaine pursuant to Section 893.13, Florida Statutes. He was adjudicated guilty of a third-degree felony for aggravated assault and a second-degree felony for possession of cocaine. The court sentenced Petitioner to 24 days, time served. In January 1992, Petitioner was living with a former girlfriend, Gloria Sanderford. Petitioner and Ms. Sanderford had an argument over some marijuana. During the argument, Petitioner hit the wall then left the residence. When he returned to the residence, Petitioner broke a window in an attempt to gain entry. In February 1992, Petitioner was charged with assault pursuant to Section 784.011, Florida Statutes, and with criminal mischief pursuant to Section 806.13, Florida Statutes. After pleading no contest to these charges, Petitioner was adjudicated guilty of a second-degree misdemeanor on both counts. Petitioner was sentenced to 16 days, time served, and 90 days' probation. The court ordered Petitioner to make restitution to Ms. Sanderford in an amount not to exceed $250. During the hearing, Petitioner admitted that he was convicted of burglary in 1994. Petitioner testified that he was sentenced to three years in jail and was eventually released on parole. The record does not reflect any additional details about this conviction. In September 1996, Petitioner and a former girlfriend, Janet McClendon, fought over some money resulting in a bruised lip and eye for Ms. McClendon and a cut on Petitioner's wrist. Petitioner and Ms. McClendon were using drugs at the time of the incident. In October 1996, Petitioner pled no contest and was adjudicated guilty of a first-degree misdemeanor battery pursuant to Section 784.03, Florida Statutes. The court sentenced Petitioner to 45 days in jail with credit for 18 days, time served. Subsequently, Petitioner returned to jail for violation of parole. On August 8, 1998, Petitioner and Margaret Bryant were not married, but were living together; they had an argument during which Petitioner pushed her. Ms. Bryant called the police resulting in Petitioner's arrest for battery pursuant to Section 784.03(1), Florida Statutes. On August 28, 1998, the court adjudicated Petitioner guilty of a first-degree misdemeanor battery for violating Section 784.03(1), Florida Statutes. Based on this conviction, the court sentenced Petitioner to five months' incarceration with credit for 21 days, time served. The court also ordered Petitioner to complete the Door Program and to participate in family counseling. After Petitioner was released from jail the last time, he began attending church. Petitioner continues to be active in his church, serving as the camera person and participating in the on-going family enrichment and marriage counseling program. Petitioner's pastor considers Petitioner to be a church leader, a loving husband, and devoted stepfather to Ms. Bryant's two children. The pastor's opinion of Petitioner is supported by many of the church members. Petitioner's mother confirms that Petitioner has turned his life around since he stopped abusing drugs and alcohol, and he often helps his mother with household chores. According to Petitioner's mother, Petitioner is a good husband and father to his stepchildren and his goddaughter. Ms. Bryant and Petitioner have been married for almost three years, but they have lived together for several years longer. She testified that Petitioner is a loving husband and stepfather. She asserts that as a couple, they have learned how to deal with the challenges of married life. According to Ms. Bryant, she and Petitioner now have the skills to keep their marriage healthy. Petitioner has a general education diploma and is an electrician by trade. He worked for one electric company for about 14 years; he has been employed as an electrician with his current employer for over two years. Petitioner's employer regards him as a hard worker who is trusted with jobsite responsibilities and recommends Petitioner as a person of character. Petitioner admits that his drug and alcohol abuse caused him problems in the past, and he does not deny his criminal history. However, Petitioner stopped using drugs and alcohol after his last incarceration in August 1998. He now has a strong marriage to Ms. Bryant and a commitment to his church and has accepted the responsibility for helping Ms. Bryant raise her children. Petitioner serves as a mentor for other young children. Petitioner's church and family provide him with a solid support system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner an exemption from disqualification. DONE AND ENTERED this 18th day of April, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 2002. COPIES FURNISHED: Anthony Bryant 960 Ontario Street Jacksonville, Florida 32254 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Respondent, the Department of Health and Rehabilitative Services (HRS), should grant the application of the Petitioners, Charles Wenz and Janet Gallagher, for a family foster home license. 1/
Findings Of Fact Through series of circumstances, the Petitioners in this case--Charles Wenz and Janet Gallagher, husband and wife--came to know the children of a woman named N. M. 4/ Their priest told them about Nancy and her predicament. A serious drug and alcohol addict, and already the single mother of two boys (J. D., born December 30, 1977, and B. F., born January 7, 1983), each of whom had a different biological father, she was about to have another child by yet another man. The Petitioners were asked to help the family, and they agreed. Shortly after the third child--a girl, N. F., born November 4, 1988-- was released from the hospital, the mother asked the Petitioners to let the family live with them temporarily. Not long afterward, the mother slipped back to her way of abusing drugs and alcohol and left, leaving the children with the Petitioners. For some time, the Petitioners cared for the children without being licensed as a family foster home and without any financial assistance from HRS. Later, in approximately March, 1991, they became licensed as a family foster home for the specific and limited purpose of caring for the children of M. 5/ When it came to the children in their care, the Petitioners generally were very attentive to their needs for food, clothing, shelter and medical care, and they provided very well for the children, following up on all doctor appointments and the like. They were very conscientious in this regard. Generally, they got along well with the children, and the children tended to view them as if they were their real parents. As a result of their involvement with the family, the Petitioners came to know the children's maternal grandparents. While initially the Petitioners got along fairly well with the maternal grandparents, they had the opportunity to form opinions of them based on personal experience and stories related by the children and, later, by the fathers of the two boys. Essentially, the Petitioners thought the maternal grandparents were good grandparents, and they encouraged and cooperated in the maintenance of a relationship between the children and the maternal grandparents. At the same time, they did not perceive the maternal grandparents as a good option for permanent placement of the children. Besides the maternal grandparents' age and limited physical and emotional capabilities, and their lack of interest in being permanently responsible for the children on a full-time basis, the Petitioners also had a concern about what they understood to be the maternal grandfather's drinking habits. Instead, since reunification with the mother did not seem feasible to either the Petitioners or to HRS, the Petitioners felt the best option, at least for the boys, would be to investigate their reunification with their fathers. Along with HRS, the Petitioners were instrumental in locating the fathers of the boys and reestablishing contacts between them and their sons. Along with HRS, they actively encouraged and fostered the strengthening of the relationship between the boys and their fathers and worked with HRS to bring the men into a position to begin to care for their sons permanently on a full-time basis. When the Petitioners became licensed as a child-specific family foster home in approximately March, 1991, they agreed to work within the policies and procedures established by the Department and to accept supervision by a foster care counselor. There was no evidence that they were not supportive of the efforts outlined in the foster care agreement or plan. 6/ But problems between the Petitioners and the maternal grandparents developed between the time of the Petitioners' licensure and September, 1991. The problems got so bad that the HRS counselor assigned to the case had to conduct visitation in his office to ascertain who was causing the problems and how to best resolve them. The problems culminated in the maternal grandparents' ultimatum that they no longer could work with the Petitioners as foster parents and that they wanted the children placed with them, the grandparents. The problems worsened as HRS began to investigate the possibility of placing the children with the grandparents. 7/ The Petitioners were against this and attempted to use their positions as foster parents to thwart HRS efforts in that direction. A senior HRS counselor replaced the initial counselor in an effort to shepherd the grandparent placement, with its attendant visitations. But, although regular visitations by the grandparents was prearranged during the fall of 1991, 8/ the Petitioners consistently raised various obstacles to the grandparent visitations, requiring multiple interventions by the HRS senior counselor and others at HRS. Three times, despite HRS interventions, visitation had to be cancelled. The Petitioners' case was taking such an inordinate amount of time that the HRS senior counselor went to his supervisor for relief. The grandparents felt the need to go to court to have the court establish visitation over the Christmas holidays. A hearing had to be held on or about December 10, 1991, and the court granted the grandparents overnight visitation from December 25 through 30, 1991. On inquiring of the children on their return, the Petitioners believed the grandparents did not properly administer prescribed medications for two of the children and accused the grandparents of child abuse. HRS investigated and found that the grandparents had been in direct telephone communication with two of the children's doctors to resolve a discrepancy between two of their medication prescriptions and had followed the telephone instructions of the doctor in charge of the prescription. In connection with the problems with the grandparents, the Petitioners exhibited a clear tendency to try to manipulate the foster care system to their advantage, even unintentionally to the detriment of the interests of the children, and sometimes, out of overzealousness, through use of untruths and half truths. On one occasion, in an attempt to persuade the first HRS counselor not to pursue placement of the children with the grandparents, they told the counselor that an HRS protective services worker had told them that the maternal grandfather had a drinking problem. In fact, it was the Petitioners who had alleged to the protective services worker that the maternal grandfather had a drinking problem. On another occasion, to avoid allowing the grandparents to pick up the children for visitation, the Petitioners cited a supposed statute or rule making it illegal for the grandparents to provide transportation for the children. 9/ Once the boy, B. F., lost a hospital pass for use to visit his grandparents because of problems raised by the Petitioners concerning the legality of the grandparents providing transportation for him. In addition to the problems with the maternal grandparents, the Petitioners exhibited a certain tendency to take things into their own hands when closer contact and consultation with HRS would have been advisable. Once they made arrangements for one of the boys to be admitted to a psychiatric hospital without consulting with HRS and did not advise the counselor until shortly before admission. To attempt to justify their actions to the HRS counselor, the Petitioner told the counselor that the boy's family therapist strongly favored hospitalization for psychiatric treatment. In fact, the counselor later found that the family therapist only had said that it might become necessary at some point to hospitalize the boy. Once the Petitioner, Charles Wenz, used corporal punishment on one of the boys although he knew it was against HRS policy for operators of a family foster home to use corporal punishment. He explained that, due to the history of the Petitioners' relationship with these children, the Petitioners felt more like parents than foster parents and that he did not think it was appropriate in their case for the usual prohibition against corporal punishment to apply to them. Later, Mr. Wenz had another occasion to use a form of corporal punishment on the other boy. 10/ In January, 1992, the Petitioners applied to renew their "child- specific" license as a family foster home. On or about February 1, 1992, the court placed the children with the maternal grandparents, and the Petitioners converted their application to one for general licensure as a family foster home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order granting the application of Charles Wenz and Janet Gallagher for general licensure as a family foster home. RECOMMENDED this 13th day of July, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1992.
