Findings Of Fact The Agency seeks to revoke the Respondents' Adult Family Care Home (AFCH) license pursuant to an Administrative Complaint dated March 24, 1999, because the Respondents are named as confirmed perpetrators of adult neglect in FPSS Abuse Report No. 1998-023542. This report was uncontested and, therefore, upheld pursuant to Chapter 120, Florida Statutes. The Department of Children and Family Services administers the abuse registry pursuant to the authority confirmed in Chapter 415, Florida Statutes, and is a separate and distinct agency of the State of Florida from the Petitioner. The Respondents are the owners and operators of the subject AFCH named the Bucknor Adult and Foster Home and reside therein. The Petitioner sought to suspend the Respondents' AFCH license in 1998 following the incident that formed the basis of FPSS Abuse Report No. 1998-023542. The parties resolved the suspension in DOAH Case No. 98-1947, ACHA No. 7-98-400-AFCH, through an agreement wherein the AFCH closed until the Agency verified that construction activity on the premises of the AFCH no longer presented a danger to residents. The parties did not contemplate that the Respondents would fail to contest their status as confirmed perpetrators of neglect so the agreement does not address the present circumstance. There is no dispute that the Respondents are the persons named as confirmed perpetrators of neglect in FPSS Abuse Report No. 1998-023542. The Respondents have not received an exemption from disqualification in order to operate an AFCH.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered revoking the Respondents' license to operate as an Adult Family Care Home. DONE AND ENTERED this 22nd day of October, 1999, 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 22nd day of October, 1999. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway, Suite 220 Tampa, Florida 33614 Robert Mike, II, Esquire 1801 Lee Road, Suite 120 Winter Park, Florida 32789 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her age or gender, or sexually harassed her, or retaliated against her in violation of the Florida Civil Rights Act of 1992, as amended, Chapter 760, Florida Statutes (2007).
Findings Of Fact Petitioner, Maureen Kuchar (Petitioner or Ms. Kuchar), filed a complaint, dated November 8, 2007, of age and sex discrimination, sexual harassment, and retaliation with the Commission. The record filed with the Commission indicated that Ms. Kuchar was 52 years old and is a female. Respondent, Creditors Interchange, LLC (Respondent or Creditors), is an “employer” within the meaning of the Florida Civil Rights Act of 1992. Respondent operates a debt collection telephone call center in Fort Lauderdale, Florida, and has its headquarters near Buffalo, New York. Creditors employed Ms. Kuchar as a debt collector from February 14, 2005, until she resigned "effective immediately" on November 10, 2006. When she was hired, Ms. Kuchar signed acknowledgments that she received a copy of the employee handbook, a code of conduct, the non-harassment policy, and sexual harassment training. The non-harassment and sexual harassment training acknowledgement forms include requirements to notify the Human Resources Department (HR) located in New York, a supervisor, or a manager of any alleged violations. Javier Neptun, a co-worker of Ms. Kuchar at Creditors, sat in a nearby cubicle. Mr. Neptun identified their two supervisors as Carol Shaw and Larry Tartaglino. Mr. Neptun heard Ms. Shaw and Mr. Tartaglino and other employees calling Ms. Kuchar “stupid,” “dumb” and “cry baby.” Mr. Neptun never reported any of the incidents to HR. After Ms. Kuchar told Ms. Shaw that she had to take leave because of a family member’s attempted suicide, Mr. Neptun and Ms. Kuchar believed co-workers were also told about Ms. Kuchar's family issues in violation of Ms. Kuchar's privacy rights. That belief is based on co-workers' comments about the Baker Act that Ms. Kuchar overheard. In May 2006, Creditor's HR representative in the New York headquarters, Sara Mangan Riggie, heard about Ms. Kuchar's concern while investigating complaints from another employee, Sherry Meredith. Ms. Riggie called and talked to Ms. Kuchar, who confirmed her concerns about Ms. Shaw, but she said things were otherwise "fine." Ms. Riggie followed up with Ms. Shaw who denied sharing the information. Ms. Shaw resigned in July 2006. At her unemployment compensation hearing in February 2007, approximately three months after she quit, Ms. Kuchar for the first time named the co-workers who allegedly made comments about the Baker Act. Ms. Riggie interviewed the co-workers who denied recalling any such conversations. As she "increased her numbers" of collections, Ms. Kuchar said she expected to get access to a personal computer. She considered it essential to help track debtors, many of whom had no telephones, and to contact their family members. Ms. Kuchar believes she was denied the same assistance and access to the Internet by her supervisors, especially that division manager J. P. Hanson provided for younger women employees. There was, however, no evidence concerning the ages of the women whom she alleged received favorable treatment. In addition, Ms. Kuchar's failure to meet her collection goals were documented in Employee Warning Notices that she checked "I agree with the statements above," and signed on June 14, 2005, November 22, 2005, December 14, 2005, and January 13, 2006. As a result, her pay was decreased from $13.00 an hour to $12.00 an hour on January 14, 2006. The evidence does not support Ms.Kuchar's claim that she was increasing her collection numbers and, therefore, reasonably expected additional support services. According to Ms. Kuchar, in October 2005, Larry Tartaglino took a picture of Ms. Kuchar’s behind and put it on her keyboard in her cubicle. When she asked him about the picture, Ms Kuchar said Mr. Tartaglino just laughed. She never reported the incident to HR and first raised the issue during her February 2007 unemployment compensation hearing. Mr. Tartaglino left his job at Creditors in July 2006. When Ms. Riggie attempted to investigate the claim, she could not find other employees who knew anything about the incident. The evidence of Mr. Tartaglino's alleged action is insufficient. Ms. Kuchar testified that she was in the ladies restroom, which had a broken lock on the door, when co-worker Terry Cementic opened the door that led to the collection floor, left it open, and walked away. There is no evidence to support Ms. Kuchar's claim regarding this incident. Ms. Kuchar and a co-worker, Ilene Calligan, age 45, engaged in ongoing arguments in October 2006. Ms. Calligan called Ms. Kuchar "stupid, dumb, you old bitch," and said she should "grow up." In another incident, towards the end of the month, Ms. Calligan leaned on Ms. Kuchar's cubicle while talking to another co-worker, Paul Roberts. Ms. Kuchar started screaming because she said they were laughing and talking over her cubicle, interfering with her efforts to work. After each incident, both women received Coaching Notes admonishing them for their unprofessional behavior. After a verbal altercation between Ms. Kuchar and Ms. Calligan, on October 31, 2006, both were sent home for the rest of the day with pay. Ms. Kuchar said she was using her cellular telephone at work, during her break in the breakroom where cell phone use was permitted at the time, when Division Manager Hansen slammed the door to the breakroom almost "in [her] face." She thinks that a co-worker was fired the next day for allowing her to "vent" to him about the incident, but there is no evidence to support her suspicion. In the Employer Coaching Note related to the cell phone incident, there is no mention of her being in the break room, rather it says: Topic of Discussion: Use of cell phone on the collection floor Facts: Maureen has been warned in the past regarding use of her cell phone on the collection floor. On 10/20/06, at approximately 3:56 pm, Maureen was using her cell phone on the collection floor. Under the section for employee comments, Ms. Kuchar checked, "I disagree with the statements above" and gave, as her explanation "I was punched out and on my way out the door." Approximately 15 people worked in the call center, eight of whom formed a clique that Ms. Kuchar said ridiculed, laughed at, and intentionally bumped into her chair or invaded her space in her cubicle. Creditors admits that some of her co- workers were rude and did not like Ms. Kuchar, but it appropriately investigated and disciplined those involved in incidents reported to its HR Department. Ms. Kuchar said she called Ms. Riggie from the telephone in the conference room in the Fort Lauderdale office, and was interrupted by her supervisor, Fort Lauderdale office manager Elizabeth Valencia, who took the telephone away from her and told Ms. Riggie that she would handle the situation. Ms. Riggie's notes do not support the claim that the call was interrupted, but that it ended with her usual advise to the employee to maintain the confidentiality of her complaints while they were being investigated. There is insufficient evidence to conclude that Ms. Kuchar was barred from or unable to make a complaint to appropriate HR personnel. Ms. Riggie received an email from Ms. Valencia on November 10, 2006, notifying her that Ms. Kuchar had quit and said it was because she had been treated unfairly. Ms. Riggie left telephone messages for Ms. Kuchar to discuss her claim of unfair treatment, but the calls were not returned. Creditors, as explained by Christie Cahalan, Director of Human Resources, did not receive most of the specifics of Ms. Kuchar’s allegations of discrimination until her unemployment compensation hearing in February 2007. There is insufficient evidence that Ms. Kuchar's poor relationship with her co-workers were based on either her age or gender. There is no credible evidence of sexual harassment or any retaliation against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations, and dismissing Petitioner’s Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 11th day of March, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 11th day of March, 2009. COPIES FURNISHED: Christie Cahalan Creditors Interchange, LLC 80 Holtz Drive Cheektowaga, New York 14225 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kathryn A. Terry, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Maureen Kuchar 2550 Northeast 51st Street Fort Lauderdale, Florida 33308 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this proceeding is whether the Department of Children and Family Services should renew the foster care license of Gloria J. Smith.
Findings Of Fact Petitioner, Gloria J. Smith, is an elementary school teacher. She previously was employed by the Ocala Police Department as a reserve officer. Petitioner has been a foster parent for approximately three years. According to Diana McKenzie, the Department's Acting Supervisor for relicensing, retention, and facilities, there were no allegations made against Petitioner prior to this incident. J.F. was a foster child of Petitioner's on two separate occasions. The first time, J.F. was placed with Petitioner, and was returned to her mother. The date of J.F.'s first placement with Petitioner is unclear from the record. J.F. returned to Petitioner for approximately two years and was returned to her mother again in May of 2001. In October of 2000, Petitioner took J.F. to the Ocala Police Department regarding an allegation of possible abuse that occurred in the past. The record is unclear as to the time sequence when this occurred in relation to when J.F. was placed with Petitioner. In any event, Petitioner's taking J.F. to the Ocala Police Department was related to alleged events that did not occur during the time J.F. was in Petitioner's foster care. In September 2001, Petitioner received a call from the Department informing her that an abuse allegation had been made and that the Department would be out to pick up her foster children. At the time, Petitioner had three foster children including J.F. Petitioner also has three children of her own including her son, J.S., who was approximately 14 years old in September 2001. Despite repeated efforts, she was not able to get information regarding the abuse allegation. No one from the Department came to her home to investigate the abuse allegation. Ocala Police came to her home but Petitioner was not at home at the time the police arrived. Petitioner took her son, J.S., to the Ocala Police Department for reasons she understood to be associated with the abuse allegation. However, she was not present during any interview of J.S. by the Ocala police. No other competent facts were established to support the allegations contained in the November 16, 2001, letter from the Department to Petitioner denying relicensure.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order granting Petitioner's license renewal. DONE AND ENTERED this 24th day of July, 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 24th day of July, 2002.
The Issue Is Petitioner entitled to be exempt from disqualification to work in a position of trust or responsibility, having been declared ineligible to work in that position by virtue of offenses involving child abuse and contributing to the dependency of a minor?
Findings Of Fact Petitioner has two children, M.B. and D.P. On February 11, 1993, those children were two years old and eight months old, respectively. Both children were residing with Petitioner. At that time Petitioner and the children lived in Gulf County, Florida. Around 8:00 p.m. to 9:00 p.m. on February 11, 1993, Petitioner decided to leave her apartment and go to a nearby store. At that time she left D.P. in the care of Sabina Daniels, Petitioner's step-sister, who was thirteen years old on that date. The Petitioner took M.B. to her neighbor's apartment and left that child with Dianna Harrison, an adult. However, the Gulf County Sheriff's office received a call around 10:30 p.m. on February 11, 1993, indicating that a child had been left unattended at the Pine Ridge Apartments where Petitioner resided. Officer Stacy Strickland, now a Sergeant, went to Petitioner's apartment around 10:34 p.m. and tried to get someone to answer the door to the apartment. No one answered. Consequently, Officer Strickland contacted the apartment manager who opened the door. Officer Strickland discovered D.P. standing in a baby bed. No other person was in the apartment at that time. Officer Strickland sought the assistance of other persons to help provide emergency care to the child. While waiting for that assistance, Officer Strickland remained in the apartment for fifteen to twenty minutes. When Officer Strickland and other officials departed Petitioner's apartment, they left a note for the Petitioner to call the Gulf County Sheriff's office concerning her child D.P. Petitioner called the Gulf County Sheriff's office at around 12:00 a.m., February 12, 1993. Petitioner came to the Gulf County Sheriff's office around 12:20 a.m., on February 12, 1993. At that time, Petitioner was placed under arrest for aggravated child abuse for having left D.P. unattended. Following her arrest, Officer Strickland read the Petitioner her rights under the Miranda decision, to include the right to seek counsel to aid her in confronting the charge. Although Petitioner was less than forthcoming during the hearing, concerning the disposition of the charges that arose from the incident in which D.P. had been left unattended, it is clear that Petitioner voluntarily entered a plea of guilty to child abuse and contributing to the dependency of a minor in the case of State of Florida v. Denine Pittman, in the County Court, in and for Gulf County, Florida, Number 93-133M. A judgment and sentence in that case was entered on March 3, 1993, requiring the Petitioner to serve three months' probation in which she would pay $30 per month for supervisory fees and was required to make monthly contacts with a probation officer. In addition, Petitioner was required to pay a fine in the amount of $214. It can be properly inferred that Petitioner complied with requirements in the judgment and sentence. Petitioner's assertions at hearing that she only left D.P. on the night in question for 30 minutes, that she had never been advised of her Miranda rights by Officer Strickland on February 12, 1993, and that she did not realize that she could have contested the charges through a trial are rejected. In 1995, Petitioner moved from Gulf County to Panama City, Florida. In August 1996, Petitioner was working in a child care facility in Panama City known as Phoenix Preschool. In her position she was providing direct care to children and was subjected to background screening in accordance with Chapter 435, Florida Statutes. Through the screening process Respondent discovered the disposition in Case No. 93-133M, leading to Petitioner's disqualification to work in a position of special trust with children and the contest of that determination through Petitioner's request for an exemption from that disqualification. In her testimony at hearing Petitioner expressed her desire to continue to work with children as an employee in a child care facility. The record does not reveal that Petitioner has had other circumstances involving inappropriate behavior involving her own children or claims of inappropriate behavior or treatment of other children for whom she has rendered care. On November 11, 1988, Petitioner was provided a certificate indicating the successful completion of twenty hours of child care training offered by the Department of Health and Rehabilitative Services and the Department of Education. On September 28, 1996, Petitioner received a certificate of completion of Dr. Jean Feldman's Classroom Management Workshop. The course lasted six hours. By the nature of the appearance of the certificate it is found to relate to training to assist in caring for children. On September 30, 1996, Petitioner received a certificate from the Department of Health and Rehabilitative Services and the Department of Education for completing a ten- hour course for developmentally appropriate practices for young children. On November 30, 1996, Petitioner received a certificate of completion of "Mr. Al's" course on "Music, Movement and More." This course lasted six hours. By the nature of the appearance of the certificate it is found to relate to children's issues. In 1996, in relation to her position of teacher-aide for the Phoenix Preschool, Petitioner received training from the Department of Health and Rehabilitative Services related to child care in-service. Ms. Gloria Lawrence testified at the hearing. She worked with Petitioner at the Phoenix Preschool, and found that Petitioner did a good job with children, in that Petitioner got along with children at the Preschool. Ms. Lawrence observed that Petitioner was trustworthy and responsible with those children. Ms. Lawrence's testimony is credited. Ms. Frances Frazier testified at the hearing. Ms. Frazier is a close friend of Petitioner and has known Petitioner during the course of Petitioner's life. Ms. Frazier finds the Petitioner to be reliable and responsible and to be good with children and believes that Petitioner has learned from the mistake that Petitioner made which formed the basis for Petitioner's disqualification to work in a position of special trust. Ms. Frazier has known Petitioner to baby-sit for Ms. Frazier's grandchildren. Ms. Frazier has not found the Petitioner to abuse children. The only incident that Ms. Frazier is aware of concerning the Petitioner leaving children unattended was the occasion under discussion here. Ms. Frazier's testimony is credited. In addition, Petitioner presented letters from Ms. Vanessa Fennell, Ms. Annie S. Fields, Ms. Dianna Harrison, Ms. Beverly Daniels, Ms. Charlotte L. Medley, Ms. Candy Robinson, and Pastor Shirley Jenkins concerning Petitioner's basic personality as a concerned person for children and the elderly.
Recommendation Upon consideration of the fact finding and conclusions of law reached, it is RECOMMENDED that a final order be entered which grants Petitioner an exemption from disqualification to be employed in a position of special trust to work with children. DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1997. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Denine Pittman Apartment D43 801 West 13th Street Panama City, Florida 32401 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Jonathan W. Whyte, held teaching certificate number 517135 issued by the Department of Education. The certificate covers the area of physical education and is valid through June 30, 1996. When the relevant events herein occurred, respondent was certified as a teacher and was employed in various positions (both instructional and non- instructional) at Terry Parker High School (TPHS) in Jacksonville, Florida. The school is a part of the Duval County School District (District). Respondent was married to and lived with Cathy Whyte until they separated in November 1989. They had two children, S. W., born on November 22, 1985, who is the alleged victim in this case, and C. W., an older brother whose age is unknown. In addition, Cathy had two older boys from a prior marriage. The six lived together in Jacksonville, Florida, where respondent was employed as a teacher and coach at TPHS. Shortly after the separation, or in March 1990, dissolution proceedings were initiated by the wife, and a somewhat acrimonious and lengthy custody battle for the two biological children ensued. A dissolution of the marriage was eventually granted, and Cathy was given primary custody of the two children while respondent received visitation rights during parts of the summer and Christmas holidays. In 1990, or after the two were separated but before the marriage was dissolved, Cathy relocated to Connecticut with her boyfriend and another male friend taking all four children with her. In December 1990, charges that respondent may have sexually abused S. W. were allegedly made by the daughter to the mother who reported these allegations to Connecticut authorities. The charges were subsequently reported to Florida authorities, and after learning of them, the District temporarily removed respondent from the classroom in 1991 and reassigned him with pay to the media center for the remainder of the school year. Because the charges still remained unresolved at the beginning of school year 1992-93, respondent was temporarily reassigned with pay to the transportation center for that school year. By the summer of 1993, respondent had not taught in a classroom for two consecutive years, and this constituted a ground for the District to refuse to renew respondent's annual contract for school year 1993-94. Consequently, he was forced to seek employment in an unrelated field pending the outcome of this complaint. In September 1992, petitioner, Betty Castor, as Commissioner of Education, issued an administrative complaint against respondent charging him with sexually abusing his daughter in July 1990. The complaint was later amended to add the charge that he also sexually abused his daughter during Christmas holidays of 1992. The filing of the complaint prompted respondent to request a hearing. The Allegations The origin of the charges The administrative complaint, as amended, alleges that from July 15, 1990, to July 31, 1990, the Respondent committed sexual acts upon his five year old daughter. Such acts included but were not limited to kissing with an open mouth, engaging in oral sex, fondling of genitals, and penile penetration of the vagina. The complaint goes on to allege that on or about December of 1992, when the Respondent's daughter was visiting him for Christmas vacation in Florida, while the Respondent's daughter was at her Grandparent's home, the Respondent again committed sexual acts upon his daughter. Such acts included but were not limited to fondling of genitals, penile penetration of the vagina, and other inappropriate touching. The Respondent thereupon told his daughter, "Don't tell anyone I did this." The veracity of these allegations, which respondent strongly denies, is discussed in greater detail below. In December 1990, or after Cathy had moved to Connecticut and while she and respondent were in the midst of a custody battle, charges that respondent had sexually abused his daughter first arose. These charges were lodged by his estranged wife after she allegedly heard these complaints from her then five year old daughter. The matter was referred to the state police, and the daughter was interviewed on videotape by a female state trooper. This videotape was later furnished to the Florida circuit court having jurisdiction over the dissolution and custody matters. In March 1991, the Department of Health and Rehabilitative Services (HRS) also received the same report that respondent had abused his daughter in July 1990. After an investigation was conducted, the report was classified by HRS as unfounded. In late 1992 or early 1993, the mother again reported to Connecticut authorities that respondent sexually abused his daughter while she visited him during Christmas holidays of 1992. The charges were referred to the Jacksonville sheriff's office in January 1993 and were later incorporated by petitioner into an amended complaint. The validity of the charges In support of the complaint, petitioner has relied upon the testimony of the alleged victim, two psychologists, an HRS investigator, and a sheriff's detective. The mother did not testify. Although the alleged victim made statements concerning the allegations to each of these witnesses, petitioner has conceded that, with one exception, all of these statements are hearsay and can be used only for the purpose of supplementing and explaining other competent evidence, if any. As to the one claimed exception, which involves the statements made by the child during an interview with Dr. D'Amato, a psychologist, the circumstances surrounding the making of the child's statements indicate a lack of reliability, and they are accordingly deemed to be hearsay. The specific reasons relied upon by the undersigned in making this finding are cited below. The validity of the charges turns in large measure on the veracity of the alleged victim's testimony. Bearing on this issue are several considerations. First, the allegations in the amended complaint arose during the course of a protracted child custody battle. Where there is marital conflict, divorce or custody proceedings, false sexual abuse allegations are not uncommon. Indeed, according to the accepted testimony of one expert, Dr. Krop, a higher percentage of false sexual allegations are made by a parent in this type of case. At the same time, there was evidence here of the presence of the parental alienation syndrome. In other words, one parent (the mother) was attempting through negative statements to alienate the children, including S. W., towards respondent, the estranged parent. When such alienation occurs, it tends to cast doubt on the credibility of the complaints of the alleged victim. Further, the evidence showed that during the child's first interview concerning the alleged abuse in late 1990 or early 1991 with a Connecticut state trooper, she was "contaminated" by inappropriate questioning and improper interview techniques. For example, during that interview, the trooper improperly interrogated, rather than questioned, the child. In addition, and contrary to accepted practice, the mother was allowed to remain in the room during the interview and was asked to verify some of the child's responses. Also, the interrogator repeatedly used leading questions and prompted the child with the desired responses. When contamination such as this occurs, any further allegations of abuse must be viewed "suspiciously" and are placed in doubt since the child is vulnerable to figures of authority and may give an answer, whether truthful or not, simply because she believes that the answer given is expected by the interrogator. Moreover, by being "interviewed" in this manner, the child was "conditioned" to give the same responses in subsequent interviews to authority figures. It is also noted that during the child's videotaped deposition in May 1993, which has been received in evidence as petitioner's exhibit 2, her answers lacked sponteneity, and she was repeatedly led by counsel and answered many questions only after being given the suggested answer. At that time, she acknowledged that "someone" had told her that by confirming that abuse had occurred, it would "help" her father. It is noteworthy that during the deposition, while claiming that some abuse occurred, the alleged victim specifically denied the allegations of oral sex, penile penetration and kissing with an open mouth, all being charges in the amended complaint. She also changed her testimony as to the number of times she was abused, and she used and understood the meaning of the words "vagina" and "penis" because of knowledge imparted to her by her mother. It is extremely unusual for a child of that age to use and understand those anatomical words. Collectively, these considerations cast considerable doubt on the credibility of the alleged victim's testimony and lead the undersigned to find that it should not be accepted. Given this finding, the hearsay testimony (consisting of statements made by the child during various interviews) offered by the HRS investigator, sheriff's detective and two psychologists does not supplement or explain any competent evidence of record and has been disregarded. Finally, the undersigned has also considered other pertinent testimony that supports the above findings, and that accepted testimony has been set forth below. The charge that respondent sexually abused his daughter during Christmas holidays of 1992 does not comport with other competent evidence. Due to the earlier allegations of abuse (that allegedly occurred in July 1990) being leveled against respondent, he agreed to certain restrictions during his visitation periods with the children. Under the terms of that agreement, when the two children visited him in Florida, they were to stay at his parents' home in Neptune Beach, and S. W. was to sleep in her grandparents' bedroom. Also, respondent agreed to never be alone with the children and to have one or both of the grandparents with them at all times. During her visit at Christmas 1992, S. W. was never alone with her father or out of sight of one of the grandparents except on one occasion when the girl accompanied her father out of the home during the day with another adult but not the grandparents. This was confirmed by uncontroverted testimony. During that same period of time, respondent slept on a couch at his parents' home, and his two children shared a bedroom directly across from his parents' bedroom. As to the alleged abuse in July 1990, the only time that the child was in Jacksonville without her brothers or mother being present was for one three day period, a Saturday afternoon to the following Tuesday. During that time, S. W. stayed at her grandparents' home while respondent spent the nights at his apartment. Respondent was working from five until midnight at a second job on Monday through Saturdays, by which time S. W. had already gone to bed, and he was attending classes at the University of Florida each work day until mid-afternoon when he returned to Jacksonville to go to work at his second job. On the only days he saw his daughter, a Saturday afternoon and all day Sunday, his parents were constantly present. Three psychologists testified in this cause. The first, Dr. Krop, a witness for respondent, became involved with evaluating respondent's family in October 1990 after being appointed by a circuit judge to evaluate the family and make a recommendation for the childrens' primary residence and visitation arrangements. The second, Dr. Kaplan, was appointed by the same circuit judge in July 1992 to offer his recommendation as to visitation arrangements for S. W. Both psychologists interviewed the alleged victim and her family, including respondent, and became aware of the sexual abuse allegations during the course of their interviews. Doctor Kaplan, who testified on behalf of petitioner, had extremely limited experience in the area of child sexual abuse, and before this case, had never been proffered as an expert in that area. Although he was accepted as an expert in psychology, he was not accepted as an expert in child sexual abuse, and very little weight, if any, has been accorded his opinions on this subject. The third psychologist, Dr. D'Amato, a Jacksonville psychologist, and also a witness for petitioner, first interviewed the child in April 1991 after the case was referred to him by the Jacksonville state attorney, presumably in response to the allegations referred to that office by Connecticut authorities. At the request of the mother's divorce attorney, and for the purpose of "monitoring" the child on the mother's behalf, Dr. D'Amato continued to see the child on four occasions in July and August 1992 for either fifteen or thirty minute sessions when she was visiting Florida. During those sessions, the psychologist found the child to be free of anxiety, comfortable with her father, and "enjoying herself." The testimony of Dr. Harry Krop, an expert in the field of child sexual abuse and who testified on behalf of respondent, has been accepted as being the most credible and persuasive of the three psychologists who testified. Based on his interviews with the child and family, and review of videotapes, depositions and other pertinent medical records, Dr. Krop concluded that the alleged sexual abuse of S. W. cannot be validated. The undersigned concurs with this finding. In summary, for the reasons cited above, it is found that respondent did not sexually abuse his daughter as alleged in the amended complaint. Therefore, the charges must fail.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the amended administrative complaint with prejudice. DONE AND ENTERED this 12th day of November, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6173 Petitioner: 1-2. Partially accepted in finding of fact 1. 3-4. Partially accepted in finding of fact 3. 5-9. Rejected as being contrary to the more credible and persuasive evidence or hearsay which does not supplement or explain other competent, accepted evidence. 10. Partially accepted in findings of fact 10 and 12. The remainder has been rejected as being hearsay which does not supplement or explain other competent, accepted evidence. 11-13. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence. Rejected as being contrary to the more credible and persuasive evidence. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence. 16-20. Rejected as being contrary to the more credible and persuasive evidence. 21. Partially accepted in finding of fact 12. 22-24. Rejected as being contrary to the more credible and persuasive evidence. 25-26. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence. 27-30. Rejected as being contrary to the more credible and persuasive evidence. 31. Rejected as being unnecessary. 32-33. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence. 34. Partially accepted in finding of fact 12. 35-37. Rejected as being unnecessary. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence. Rejected as being unnecessary or contrary to the more credible and persuasive evidence. 40-41. Rejected as being irrelevant. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert J. Boyd, Esquire Post Office Box 26 Tallahassee, Florida 32302 Wm. Bruce Muench, Esquire 438 East Monroe Street Jacksonville, Florida 32202 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry L. Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Respondent’s certifications as a Correctional and Law Enforcement Officer should be disciplined and, if so what penalties should be imposed.
Findings Of Fact Respondent, Fedrick Williams, was certified as a Correctional and Law Enforcement Officer on June 26, 1992, holding Certificate Numbers 55153 Correctional and 55152 Law Enforcement. He was employed by the Leon County Sheriff’s Office in 1992 as a Deputy. From 1992 until 1996 he served without incident. In 1996, Respondent took a leave of absence for two years. In 1998 he returned to the Sheriff’s Office and served without incident until he was criminally charged with Aggravated Child Abuse by Malicious Punishment, a second degree felony, pursuant to Section 827.02(2), Florida Statutes. The alleged violation of the lesser included offense of child abuse under that statute forms the basis for the discipline sought by the Department in this proceeding. B.B. is the biological son of Lisa Williams and stepson of Respondent. B.B. suffers from a growth hormone deficiency. Because of the deficiency, B.B. is required to take hormones as well as adhere to a special diet to help with his condition. However, even with treatment, B.B. is unusually small for his age and, during the time of these events, B.B. was approximately four feet, four inches tall and weighed approximately 63 pounds. The B.B. and his mother had a history of physical confrontation that, at times, resulted in both Department of Children and Family Services and police intervention. Indeed, in 2001, B.B. received two permanent scars from his mother’s beating him. B.B. was arrested for hitting his mother with a pogo stick. When B.B. was released from the Department of Juvenile Justice (DJJ) his mother refused to pick him up. Respondent picked up B.B. from DJJ. B.B. also stole and forged checks from his mother on at least two occasions. Additionally, he threatened his cousin with a knife when he became angry at him. Things were so strained between B.B. and his mother that after the criminal actions involved with the incident related to this proceeding, B.B.’s mother voluntarily terminated her parental rights and gave up custody of B.B. to a relative. On the other hand, Respondent and B.B. had a good relationship. They did many things together and B.B. often came to Respondent for advice, help or just to talk. The termination of his wife’s parental rights and loss of his stepson greatly distressed Respondent and causes him heartache to this day. In fact, Respondent still communicates with B.B. and wishes he were home with him. Respondent’s disciplinary style was not generally physical. Witnesses described him as a gentle man. In fact, Respondent preferred to talk things out if there was a problem. He rarely utilized corporal punishment and always exercised restraint if he had to resort to such. Indeed, Respondent talked to B.B. and placed him on restrictions when B.B. forged his mother’s checks and threatened his cousin with a knife. On November 8, 2002 at about 6 p.m., B.B.’s mother discovered that B.B was sneaking and hiding candy and junk snack food in his bedroom. There were crumbs and packages from his food stash in his dresser drawers and around his room. As indicated above, the reason B.B.’s behavior was serious was that B.B.’s health required that he adhere to a diet that did not include junk food. B.B. had been warned on multiple occasions about eating candy and other junk foods. He had also been on restriction multiple times for such behavior. On November 8, 2002, B.B was either on or had just gotten off of restriction Respondent had placed him on for eating such junk foods. B.B.’s mother called Respondent into B.B.’s bedroom. Respondent first talked to B.B. and then got his service belt and swatted him at most four or five times across B.B.’s buttocks. There was no injury to B.B. at this time. He then talked to B.B. some more and left the room to take care of B.B.’s younger brother in the living room where the TV was on. Respondent has consistently denied injuring B.B. and has consistently reported the same facts as above. After Respondent left the room, B.B.’s mother entered the room. Respondent’s teenage daughter, who was doing her homework at the dining room table and could hear what was happening in B.B.’s room, heard B.B’s mother yelling and cursing at B.B., things falling off the furniture and loud banging noises around the room. Respondent was not in a position to hear what was occurring in B.B.’s room. B.B.’s mother testified that B.B. was not injured when she left B.B.’s room. Eventually, B.B. was sent to bathe and get ready for bed. Respondent’s daughter did not see any injuries to B.B.’s face when he left his room to bathe. While in the bathroom, B.B. went to the bathroom window and climbed out. The bathroom window was high as it relates to the B.B.’s height of four feet and four inches. The window was not large enough for B.B. to have crawled through in an upright manner so that he could land on his feet once outside. On the outside and under the window there was a three foot wide thorny rose bush and a brick ledge. It is highly likely that B.B. hit both the bush and the ledge on his way down from the window. Both obstacles could have caused long strap-like bruises to B.B.’s body as well as injury to his eye and other abrasions. Respondent’s home was surrounded by fairly thick forest. The forest appears to be thick enough to have also caused bruising or other injuries to B.B. B.B.’s foot prints were found leading away from the house towards the woods. B.B. traveled about six miles through thick forest to the James’ property. He climbed into Mr. James’ truck and went to sleep. At some point, B.B.’s absence was discovered. B.B.’s mother reported B.B. as a runaway on the evening of November 8, 2002. A lengthy search by Respondent and the police ensued which was not successful. B.B. was discovered the next morning by Mr. James when he was leaving for work. Mr. James brought B.B into his home and left him with his wife. Both neighbors observed that B.B. had several bruises on his arms and a very swollen black eye. According to Ms. James, B.B. had an eye that was swollen shut and had red marks above his eye extending to his hairline. One of the James’ called the police to report that they had found a child. When asked by Ms. James’ who had hit him. B.B. reported that his mother had hit him and caused his injuries. B.B. was not present and did not testify at the hearing. The effort used by the Department to secure B.B.’s presence at the hearing was minimal given the importance of B.B.’s role in these events. The Department’s efforts consisted of four telephone calls on Friday, August 25, 2006 that resulted in a message being left. There was no response to these calls. On Monday, August 28th and on Tuesday, August 29th, the Department again unsuccessfully called and left messages. One such call seemed to be interrupted by the phone being picked up and then hung up. Other than that one interruption, the Department offered no proof that anyone actually received the messages left on the answering machine. No subpoena of B.B. was attempted by Petitioner. No certified letter was sent to secure the presence of B.B. by Petitioner. Counsel for the Respondent made Petitioner aware of B.B.’s whereabouts several weeks before the hearing. No one from the Department traveled to that location to try to find B.B. No continuance was requested in order to locate B.B. The Department’s efforts, or lack of effort, to secure B.B.’s presence at the hearing do not demonstrate that B.B. was unavailable for the hearing. Instead the Department offered into evidence the transcripts from B.B.’s deposition taken as part of Lisa Williams’ criminal case, case number 2202 CF 4227-B1. This deposition was taken Tuesday, October 14, 2003, and was offered as Petitioner’s Exhibit numbered three. The deposition indicates that Respondent was responsible for B.B.’s injuries. Although Respondent was criminally charged based on similar fact evidence, the deposition of B.B. was not part of Respondent’s case and Respondent was not a party to that criminal case. The motive for Respondent to fully and adequately develop the testimony of B.B. was not as vital as it would be had the deposition been conducted for Respondent’s own case. Moreover, B.B.’s accounts of the evening of November 8 vary widely as to which parent was responsible for his injuries. Little credit is given to any of B.B.’s statements regarding the events of November 8, 2002. Deputy Hunter picked B.B. up from the James’ residence. He took B.B. to Tallahassee Memorial Hospital’s emergency room where the child was interviewed and extensively photographed. The photographs showed a variety of bruises and abrasions over B.B.’s body and a very swollen eye. Some of the bruises were long strap-like marks. Crime Scene Detective Patrick Lyons met with B.B., Deputy Hunter, and a member of the Child Protection Team at the emergency room. There were dozens of photos taken by Detective Lyons. One of the interviewers was Cynthia Y. Burns, RN. She stated that B.B. stated that his step father hit him in the eye. B.B. was also interviewed by Elain Sofkis, RN. He made a similar statement to her. The lead investigator was Detective Derek Terry of the Leon County Sheriff’s Department. On November 9, 2002, B.B. variously told Detective Terry that his stepfather beat him with a belt and hit him in the face with the belt, after which his mother immediately jumped on him and punched him in the face 20 or more times. A short time later, B.B. stated that he was hit 20 times with the belt, after which his mother entered his room and punched him in the stomach and chest, but not the face. Detective Terry never went to the house where the alleged abuse occurred. Again, B.B.’s statements are not credible. On November 9, 2002, Respondent was criminally charged with Aggravated Child Abuse of B.B. Shortly thereafter, Respondent was terminated from his position with the Leon County Sheriff’s Office at the recommendation of the Career Services Board. The termination was conditioned upon the Respondent pleading to or being convicted of Aggravated Child Abuse or any lesser included offense in his criminal case. At the conclusion of the criminal case Respondent plead to two counts of disorderly conduct, which are misdemeanors of the second degree. Respondent entered his plea because he could not financially afford to continue the legal process and he wanted to return to work at the Sheriff’s Office. Since disorderly conduct was not a lesser included offense of aggravated child abuse, Respondent was reinstated to his former position without pay for the time missed from work in 2004. In the final analysis, the evidence presented at this hearing did not demonstrate that Respondent committed any acts of aggravated child abuse or child abuse. The more credible evidence demonstrated that Respondent did not cause any injury to B.B. and that the injuries that B.B. had on November 9, 2002, were either inflicted by his mother or B.B.’s encounter with the environment outside the house and his subsequent long trek through the woods in the dark. Moreover, the evidence did not demonstrate that Respondent’s moral character was impaired or diminished by these events. The only thing Respondent did was spank his stepson with a belt. He did not injure him or maliciously punish him. Therefore, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding Respondent not guilty of violating Section 943.1325(6) or (7), Florida Statutes, and dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of February, 2007, in Tallahassee, Leon County, Florida. S 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 6th day of February, 2007. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Deveron L. Brown, Esquire Brown & Associates, LLC The Cambridge Center 223 East Virginia Street Tallahassee, Florida 32301 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(b), Florida Statutes, in that Respondent knowingly failed to report actual or suspected child abuse as alleged in Petitioner's Amended Administrative Complaint. Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(j), in that Respondent violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules as alleged in Petitioner's Amended Administrative Complaint.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of material and relevant facts: Parties' Statement of Agreed Facts Respondent holds Florida Educator's Certificate 632878, covering the area of elementary education, which is valid through June 30, 2017. At all times pertinent hereto, Respondent was employed as a part-time interventionist teacher at Brownsville Middle School ("BMS"), Miami-Dade County School District. Respondent has been a certified teacher for 25 years. On March 9, 2015, Respondent was informed by Y.H., a sixth-grade female student, that her stepfather comes into her room and lays on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present. On March 9, 2015, Y.H. also informed Respondent that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. Respondent went to Counselor Sonya Durden's office on March 9, 2015, to discuss what she had heard from Y.H. and the other two students. Respondent did not immediately report the student's accusation on March 9, 2015, to the Department of Children and Families or the Child Abuse Hotline. Facts Adduced at the Hearing The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates under section 231.2615, Florida Statutes. During Castella's 25 years of teaching, she testified that she had never received training concerning suspected child abuse or related reporting requirements. This testimony is rejected. The more persuasive and credible evidence revealed that all school employees at BMS, with no exceptions, received regular training at the beginning of each school year, which includes their reporting duties when child abuse is suspected. The more persuasive evidence also demonstrated that various posters on child abuse reporting were posted around the school to remind teachers at BMS of their reporting requirements in cases of suspected child abuse. Respondent's Exhibits B and C are examples of those posters. Respondent's Exhibit B is a colorful poster with the title Child Abuse Look for the Signs. The poster gives information on various signs of physical and sexual abuse, as well as the procedure to follow when a child speaks of abuse. The evidence revealed that this poster was posted at the designated faculty sign-in area at BMS at all times relevant to this incident. Principal Ebony Dunn testified that "all of the employees have to sign-in whether they're hourly, whether they're full-time, non-instructional." Thus, Castella would have been required to sign in at this designated area at the beginning of each day where the poster was prominently displayed. The undersigned finds that based on the more persuasive evidence, Respondent was aware of the poster's content. Respondent's Exhibit C is another poster with the title Reporting Child Abuse is Everyone's Responsibility. This poster details various signs of child abuse and how someone can report an instance of child abuse. The undisputed evidence indicated that this poster was also displayed at the student services building/main learning center at all times relevant to the incident. The more persuasive evidence and reasonable inferences drawn from the evidence indicate that Respondent was aware of both of these posters and knew of her duty to report suspected child abuse. March 9, 2015, Incident On March 9, 2015, Castella was approached by three girls at lunch, one of whom was Y.H., a sixth-grade female student. Castella observed that the other two girls were prodding Y.H. to speak to Castella. During this encounter, Castella was informed by Y.H. that her stepfather comes into her room and lies on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present.2/ Y.H. also informed Castella at lunch that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. After lunch, Castella went to another teacher, Philogene, to report the incident because "she wasn't sure what to do," and she wanted to know the other teacher's thoughts on Y.H.'s statement.3/ Castella contends that she was not aware that what Y.H. told her amounted to child abuse. However, when asked why she told Philogene about the incident, Castella responded, "I wanted to ask Ms. Philogene what she thought because what Y.H. told me was odd, weird." The record indicates that after hearing about the incident, Philogene told Castella to report the incident to Counselor Durden.4/ Castella testified that on March 9, 2015, she went to Counselor Durden's office to discuss what she had heard from Y.H. and the other two female students. However, Castella asserted that despite her efforts, she was not able to report the incident to Counselor Durden because she was not in her office. Significantly, Castella left the school that day without reporting the incident to any administrator on campus.5/ Inexplicably, Castella did not immediately report the female student's information on March 9, 2015, to the Department of Children and Families or to the Child Abuse Hotline. Respondent claims that she did not know the protocol for reporting child abuse. The undersigned rejects this claim as incredible and spurious. Rather, the credible and more persuasive evidence shows that it was common knowledge among the school staff, based on training and posted notices, that an incident of child abuse should be reported immediately. March 10, 2015, Incident The next day, Castella went to Counselor Durden's office immediately upon arriving at the school to report what Y.H. had told her the day before. According to school policy, Castella was mandated to report the incident to a school administrator. Counselor Durden was not an administrator, nor was she Castella's supervisor. After disclosing the nature of her visit, Counselor Durden questioned Castella about the incident and why Castella did not report the incident when she became aware of it the day before. Counselor Durden testified that, "[Ms. Castella] said a young lady, a sixth-grader, had told her during lunch that the stepfather comes into the room every night drunk and holds her down and climbs on her. So I said, 'She told you when?' And she said, 'Yesterday during lunch.' And I said, 'You didn't call it in?' And she said, 'No I didn't.' And I think she was talking about like, you know she's friendly with the kids, and she didn't want to lose her confidence, they trusted her." Castella testified that she was reluctant to immediately report the incident because she did not want to violate the female students' trust. Counselor Durden proceeded to call the Department of Children and Families while Castella was still in her office. Both joined in reporting to the Department of Children and Families what had occurred. Later that afternoon, the Department of Children and Families held a meeting at the school with Y.H., the other two girls who were with Y.H., and Castella to gather details of the suspected child abuse and to determine how to proceed with the incident. Contact With News or Media Outlets Castella contacted and voluntarily appeared on a number of local news broadcasts. She detailed the suspected child abuse incident and proceeded to give the name of the school. Petitioner's Exhibit 8, which is a Notice of Investigation signed by Castella and delivered to her, states that a faculty member may be terminated if they speak to a number of subjects about a pending investigation. The document specifies, "You are not to discuss this matter with any witnesses, parents, staff, students, or the complaining party to avoid interference with the investigation." Castella asserts that she did not violate the notice because it did not specify she could not speak to news stations. However, Principal Dunn testified that anyone, including the listed parties, had the ability to watch the news broadcast. Therefore, the undersigned finds that her appearance on the news stations violated the spirit and intent of the notice because it could have had an indirect, adverse impact on witnesses and interfered with the internal investigation by the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Diana Castella in violation of Counts 1, 2, and 3 of the Amended Administrative Complaint and placing her license on a one-year probationary status, during which time she be ordered to attend and successfully complete, at her expense, training related to her reporting obligations under section 1012.795(1)(b), Florida Statutes. DONE AND ENTERED this 17th day of March, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 17th day of March, 2017.
The Issue Whether the Department of Children and Family Services (DCF) may revoke Respondent's family foster home license for inflicting physical, oral, and emotional abuse on three foster children in her care, as more particularly stated in FAHIS Report No. 2000-172767; intimidating the children to ask that visits with their parents be stopped; and having sufficient income, pursuant to Chapter 65C-13, Florida Statutes.
Findings Of Fact Insufficient Income Respondent Nedra Street has held a Family Foster Home License since July 6, 1998. At the time she was licensed, DCF did not disqualify her application because she was between jobs. DCF was aware she was living on unemployment compensation and child support for her natural son, D. DCF has no rule establishing strict economic parameters for foster home licensees. Its rule only requires that foster parents have sufficient income to absorb four to six weeks of a foster child's care until a board payment is received. This requirement is to ensure that foster parents will not divert board payments for foster care children to their own needs and so that they will spend the board payments on the foster children entrusted to their care. So far as the testifying DCF supervisor knew, no foster care license ever has been revoked for insufficient income. When Respondent was licensed, she was not required to submit a budget. No rule requires that an applicant or licensee submit a budget. However, DCF personnel currently requires that applicants submit a budget, and DCF reviews the applicant's stated income and expenditures. What formula, if any, DCF uses for this review was not disclosed. Because DCF has never asked Respondent for a budget, it has never analyzed her income and expenditures in any detail. Respondent, with her elderly mother, own and live on a 60-acre farm. They support themselves by raising cattle, by growing timber for sale, and by leasing their peanut allotment. Their home, its contents, and real property are owned free and clear. Respondent holds a B.S. degree in elementary education and is Florida-certified to teach elementary school. She also is a Certified Nursing Assistant and a Certified Medical Assistant. At all times material, she was working only part- time "as needed" in a delicatessen, so that she could devote more time to her natural son and her foster children. As of the date of hearing, she was employed at Shands Medical Center. Respondent successfully fostered six other children before the three children who are the focus of this case. There is no credible evidence that she short-changed DCF or any child as to food, clothing, or shelter. In making the foregoing finding, I have considered Taleca's deposition testimony that Respondent gave no food to the three children over any weekend, "No, never one of us," and find it not credible upon the evidence as a whole. Indeed, all other witnesses testified that at all times material Respondent fed the children adequately and kept Taleca, Michael, and Yana, clean, well-groomed, and well- dressed, either by purchasing their clothing new, or by receiving good quality clothing from one or another public or private source. Oral and Emotional Abuse; Intimidating the Children to Ask that Visits With Their Parents Be Stopped Foster parents are required to be supportive of the foster child's birth parents by not saying demeaning or degrading things about them to the child and by being supportive of the family of origin. At some times material, it was DCF's policy to urge contact between Taleca, Michael, and Yana and their natural parents and to work for ultimate reunion. During the material period of time, Respondent and teachers reported to counselors that Taleca's, Michael's, and Yana's behavior changed for the worse and remained bad for as long as four days after each supervised visitation with their natural mother. At some point, Respondent urged DCF counselors and the school counselor, Lynne Holston, to stop the visitations. While there was no proof that Respondent ever encouraged reunion of Taleca, Michael, and Yana with their natural mother or father, likewise, there was no credible or reliable evidence she ever demeaned the parents to the children. In making the foregoing finding, I have discounted as not credible Taleca's vague testimony concerning either inquiries or statements by Respondent about the natural parents' prior abuse of the children or failure to feed them. Inflicting Physical Abuse on Taleca, Michael, or Yana By rule, DCF prohibits foster parents from administering corporal punishment to foster children. Foster parents annually sign the disciplinary policy on this prohibition. Respondent received training prior to becoming a foster parent, which included this prohibition. She was clearly aware she was not permitted to use corporal punishment on foster children. Foster children Yana (four years old), Michael (six years old) and Taleca (10 years old) are siblings who were placed in Respondent's family foster home on July 28, 1999. They remained in Respondent's care for more than a year until November 3, 2000, when they were removed by DCF as a result of allegations of physical abuse. When removed from Respondent's care in 2000, Taleca and Michael bore many scars and bruises, most of which would not normally have been seen under ordinary clothes, but some of which might be visible if the children were wearing shorts. When placed with Respondent in 1999, all three children had been physically abused by one or both natural parents. According to Advanced Registered Nurse Practitioner Linda Cox Ebbeling, Child Protection Team (CPT) records show referrals of Michael to DCF in 1995, when he was 17 months old and while he was still living with his natural mother, for his being hit in the face and head and for bruises from a metal- tipped belt, and later the same year for a broken arm. All three children had one or more psychiatric issues to resolve when they were placed with Respondent in July, 1999. Michael, particularly, was hyperactive, aggressive, and violent towards other children when placed with Respondent. He was particularly violent toward his younger sister Yana, but as one counselor testified, "Yana was gaining on him quickly." A kindergarten teacher described Michael as being unable to be touched without his jerking away when he first entered her class in August 1999, a few days after being placed with Respondent. Lynne Holston, M.S.W., is a child therapist of 23 years' experience and a registered play therapist. Taleca relied on Ms. Halston for comfort and moral support during her testimony at hearing. Ms. Holston worked regularly with Respondent and the three children at Joyce Bullock Elementary School from the end of September 1999 until August 2000. She found Respondent responsive to her suggestions and proactive in getting all the necessary assessments (medical, psychological, and educational) necessary so that Michael could qualify for an appropriate Individual Education Plan (IEP) suitable for his special needs. Respondent also sat in class with him to calm him down when he had bad days. Nothing in the children's interactions with each other, herself, or Respondent suggested to Ms. Holston that Respondent was abusing any of the three children. She inquired approximately every six weeks if anyone had touched them uncomfortably, and both Taleca and Michael answered in the negative each time. During this time, she never saw fresh wounds on Taleca and saw only one fresh wound on Michael. That wound was traced to a child-on-child encounter when Michael was hit on the head with a brick by another boy. Michael was impulsive, unfocused, agitated, over- anxious, and had many school incident reports during the 1999- 2000 school year. Whether these reports always involved violence is unclear, but many did. Through Respondent's persistence, Michael was diagnosed with attention deficit/hyperactivity disorder (ADHD) and medicated. His behavior improved. At some point, Yana also became subject to legitimately prescribed behavior-modifying medication. Over time, all three of the children's aggressive and traumatized play, which Ms. Holston related to the birth mother, became more organized and resolved. In November 1999, DCF investigated a complaint that Respondent had slapped Michael in the face. Initially, Taleca stated that the slapping incident had taken place. At that time, various parts of Michael's body were photographed for a CPT medical examination, but the photographs do not show all the body parts that became an issue in the instant case arising in November 2000. Some scarring on his buttocks and at least one bruise was found on Michael's left lateral thigh in 1999, which marks corresponded to two of twelve marks found in November 2000, see infra. The 1999 case was closed as unfounded and the children were returned to Respondent's care. Apparently, one reason for the "unfounded" classification was that Michael and Taleca recanted. According to Ms. Holston, in November 1999, supervised visitation with the natural parents also was suspended because the children were recovering memories of abuse by the natural parents and did not want to see the birth mother. Ms. Holston personally observed a cross-examination of Michael by his natural mother at about this time concerning the DCF investigation into whether or not Respondent had slapped Michael. Ms. Holston felt the mother's examination was upsetting and frightening to Michael. Michael's deportment improved further after he was assigned to a self-contained ESE classroom in approximately August 2000. Taleca and Michael were honor roll students by the 2000-2001 school year. On March 27, 2000, a DCF counselor interviewed Taleca, Michael, and Yana at school, outside Respondent's presence, and reported no marks, bruises, physical indicators, or statements of abuse. DCF Counselor Deanna Sheppard interviewed them in the same manner on August 10, 2000, and October 31, 2000, three days before DCF's removal of them from Respondent's home. Ms. Sheppard also detected no marks, bruises, physical indicators, or statements of abuse. Many ordinary, prudent, and credible witnesses, who had observed and known Respondent and the children professionally and personally over varying periods of time, uniformly expressed their belief that Respondent had been a good foster parent and testified that they had observed no marks on the children or abuse by the Respondent. Michael had bonded with his kindergarten teacher who had maintained weekly, but not private, contact with him into the 2000-2001 school year. Michael never told her of any abuse by anyone. She has reported abuse of other children in the past, but she noticed no evidence that Michael was abused. It is undisputed that sometime on October 31, 2000, Yana sustained several first and second degree burns on her neck and chin from one or both of Respondent's two curling irons. What is disputed is how the burning occurred, whether Respondent inflicted the burns, and whether Respondent was justified in her failure to report the incident to DCF. On November 3, 2000, Benita Cooper, Child Protective Investigator (CPI), responded to an abuse hotline complaint naming Yana as a victim, and went to the children's school. Her interviews with all three children on that day are deemed reliable hearsay.2 At the school, Ms. Cooper interviewed Yana separately and privately, using open-ended questions. In response to Ms. Cooper's question of "What happened?" Yana told her that she had been beaten with a spoon. Yana made no statement whatsoever about her burns. During this interview, Ms. Cooper also observed marks on Yana's arm, elbow, back, under her chin, and on the back of her neck. Ms. Cooper considered the neck wounds and some other marks fresh. She considered still other marks to be old, but she did not date the marks. In Ms. Cooper's opinion, Yana's neck injuries were all ones a foster parent is expected to report. In Ms. Brannen's, the DCF District Supervisor of Foster Home Licensing's, opinion, it is unclear whether a foster parent is required to report an injury of this kind when they are capable of treating it medically. Ms. Cooper also questioned Taleca and Michael separately and privately at their school. They were reluctant to talk to her and denied they had been hit, denied being disciplined at home, or knowing anything about Yana's injuries. It is recognized that children often do not report on-going abuse at the first opportunity. Deanna Sheppard had become DCF Foster Care Counselor for Taleca, Michael, and Yana as of June 2000, but she had not seen them except as noted above and had developed no particular rapport with them. Her recitation of hearsay statements of the children on November 3 and 4, 2000, have been considered, pursuant to Section 90.803(23), Florida Statutes, and found reliable.3 Accordingly, it is found that on November 3, prior to her CPT physical examination, Yana stated, under reasonably reliable circumstances, that "Mama was doing my hair and burned me with the curling iron," and that "Mama whooped me with a spoon." Ms. Sheppard understood her to be referring to Respondent. Advanced Registered Nurse Practitioner Susan Pendrak examined Yana on November 3, 2000. Advanced Registered Nurse Practitioner Linda Cox Ebbeling examined Taleca and Michael on November 4, 2000. Both women are qualified by education, training, and experience to render expert nursing opinions. The fact that their opinions with regard to the wounds of the children that they examined were couched in terms of "reasonable medical certainty" is not disqualifying, as the undersigned has accepted their opinions as being given only within their expertise of nursing. Nurse Pendrak's findings with regard to Yana's wounds on November 3, 2000, were that the hyper-pigmented linear marks on Yana's neck, arm, and hand were consistent with burns from a curling iron. She believed those on the neck had been inflicted by another person and were not accidental because of the location, pattern, and number of burns. She did not believe that any burns could have been inflicted accidentally due to the location, pattern, and number of burns, and further stated that if a sibling had done it, Yana could have gotten away. However, there were no marks on Yana clearly showing she had been held by an adult. Therefore, an accident cannot be ruled out. In the context of Yana's November 3, 2000, examination by Nurse Pendrak, which I find constituted reliable circumstances under Section 90.803(23), Florida Statutes, Yana repeatedly told Nurse Pendrak that "my momma whooped me" with a "whooping spoon," which Yana described as black and wooden, and with a "whooping" stick. Yana stated she did not want to go "to my momma's house." She made no statements about the burns. Nurse Pendrak concluded that Yana was referring to her foster mom, Respondent. 4 After Yana's examination, Ms. Sheppard transported all three children to the Trenton DCF Office where they were interviewed by Bonnie Robinson, a Child Protection Investigator, while Ms. Sheppard took notes. Ms. Sheppard's recitation of hearsay statements of the children has been considered, pursuant to Section 90.803(23), Florida Statutes, and found reliable.5 At the Trenton Office, Bonnie Robinson interviewed each of the children separately while Ms. Sheppard took notes. Ms. Sheppard seems a little vague about whether or not Yana said, at this interview, that she was burned by her Mama, but is clear that she identified Respondent as the one who had "whooped [her] with a spoon." She is also clear that Michael stated he had been whipped on his feet, hands, and butt, with a black spoon and a brown and gray stick and that Taleca said she had been whipped with a black spoon with tape on the handle, a stick or paddle, and an "x" belt, and that these items were kept in Respondent's nightstand. Each of the children identified Respondent's bedroom by colors. Deputy Sheriff Joe Barrera accompanied Bonnie Robinson and Ms. Sheppard to Respondent's home on the evening of November 3, 2000. Taleca, Michael, and Yana were not present in the home, but D., Respondent's natural son, was present. Respondent denied ever seeing the scars on Taleca and Michael in photographs she was shown because the scars were under their clothes and she did not bathe them.6 With regard to photographs of Yana's burns, she stated that Yana burned herself with the curling irons while Respondent was in the restroom. She denied ever hitting any of the children. Deputy Barrera seized a large, black, plastic serving spoon, with the handle wrapped in gray duct tape and a hole in the handle for hanging it, and a paint stirrer in natural wood with red lettering on it from the bottom drawer of Respondent's bedside night stand.7 At hearing, Taleca testified that this was not the spoon with which Respondent beat her, but she recognized the stirrer which she called a "paddle." Respondent testified this was a spoon reserved for feeding the dog, and the children had hit each other with it. Respondent's testimony on the spoon as the children's weapon is not credible, and she did not explain the stirrer. On Saturday, November 4, 2000, after the three children had spent the night together in an emergency shelter, Deanna Sheppard picked up Taleca and Michael for their CPT medical examination by Nurse Linda Cox Ebbeling. In the context of her examination of him, Nurse Ebbeling asked Michael about twelve marks on his body. This procedure constituted reliable conditions under Section 90.803(23), Florida Statutes.8 Michael could give no history about the cause of many of his scars, and this is reasonable in light of his age and the number of times he must have been scarred even by his own hyperactivity. Due to Michael's inability to give a history for many of his injuries, Nurse Ebbeling leaned toward an opinion that he "could have" been abused, as opposed to clearly opining that he had been abused. Nonetheless, she related that Michael attributed two of the marks on his body to being hit by Respondent with a black spoon and a switch, and in her professional opinion, these two marks had been, in fact, inflicted. Michael stated that another one of the marks was from his "old mom," as distinguished from Respondent. Michael also stated that Respondent slammed him against the wall and used a stick or switch to hit his hands, butt, and the bottoms of his feet. He stated that he had seen Respondent hit his two sisters, but he did not relate that Respondent had jumped on him. Nurse Ebbeling did not professionally confirm that Michael had been slammed against a wall or jumped upon. She eliminated the disparities on Michael's feet from being bruises or inflicted wounds, as conjectured by other witnesses, and attributed them to Michael simply having a different skin texture in that area. Several other marks on Michael's body looked inflicted to her, but she could not rule out accidental injury. Overall, Michael evidenced multiple healed and healing lesions, some of which were consistent with his telling her they had been inflicted by Respondent. Michael's healed lesions could not be placed as having occurred before he went to live with Respondent or placed during the year and a-half he had lived with her. In the context of her examination of Taleca on November 4, 2000, which I find constituted reliable circumstances under Section 90.803(23), Florida Statutes,9 Nurse Ebbeling determined that the multiple curvilinear lesions and hyper-pigmented lesions on Taleca's right hip and back shoulder area were consistent with Taleca's statements that Respondent had hit her on her hip and back with a black spoon, but that Taleca did not have an explanation for several other marks on her body. Taleca's other allegations at that time of Respondent stomping on her and banging her head into things were not verified by the nurse. Taleca and Michael were deposed January 30, 2001. These depositions are fully in evidence and have been considered in their entirety, as if the testimony therein had been given at hearing.10 At the time of Taleca's and Michael's January 30, 2001, depositions, the three children were residing with foster care mother, Ethel Riley. Ms. Riley has successfully fostered 30-40 children since 1994. After the children's depositions and about two weeks before February 26, 2001, Ms. Riley overheard Michael state to Taleca, during a squabble, "Ms. Street didn't burn Yana's neck. Yana burned her own self." Ms. Riley attempted to report this conversation to Ms. Sheppard and was rebuffed. This hearsay statement also is considered reliable pursuant to Section 90.803(23), Florida Statutes.11 On or about February 26, 2001, after Michael had become uncontrollable at school, a complaint was called in to the abuse hotline about Ms. Riley abusing the three children involved in the present case. Taleca and Michael gave statements that they had been paddled by Ms. Riley with a board. No CPT investigation of this incident occurred and Ms. Sheppard simply removed the children to another foster home, apparently on the theory that there had been "inappropriate" corporal punishment but not abuse. Another hotline complaint, alleging Ms. Riley had locked Yana in her garage, was investigated the next day. Apparently, this report was listed as unfounded, because Ms. Riley is still licensed. Ms. Riley credibly denied abusing any children and stated that her garage is, in fact, a recreational room for the children. She noted that two weeks before Taleca and Michael accused her of paddling them, she had signed a form permitting school officials to paddle Michael instead of suspending him. Mary Anna Hovey holds a Ph.D. in clinical psychology and sociology and is a Florida-licensed clinical psychologist with at least 17 years of experience with children. Dr. Hovey is qualified by education, training, and experience to give expert testimony in the field of child psychology. She interviewed Taleca, Michael, and Yana in March 2001, four months after the children were removed from Respondent's home. She spent approximately three and a-half hours with each child separately. Appropriately under the case law, Dr. Hovey did not comment on the credibility of the child witnesses or their hearsay statements, but her expertise has been considered in assessing the reliability of the child-hearsay statements, the children's deposition testimony, and Taleca's live testimony. Specifically, it has been considered in relation to each child's respective consistency or inconsistency with the psychological "affect" of abused children versus children who have been coached, who concoct stories, or who fantasize. The corroborative evidence for each child's hearsay statements under Section 90.803(23), Florida Statutes, are the photographs of the children's respective wounds, the nursing evidence of causality and dating of the wounds, and the fact that a spoon and stirrer matching the children's general descriptions were found in complete accord with the children's statements. Having fulfilled all statutory requirements for determining that the hearsay statements are admissible and may be considered, the evidence as a whole must be considered and weighed. Michael's videotape deposition, like Taleca's live testimony, allowed assessment of each child's credibility based on candor, demeanor, and consistency in a confrontational legal setting. Taleca's testimony, live and by deposition, and Michael's video deposition testimony are generally consistent with their respective prior hearsay statements concerning being hit with a black spoon or small stick or paddle by Respondent, and the reasons therefore (bad grades, bad behavior, and failed farm chores) but they differ significantly and implausibly on other matters. Those other allegations are rejected.12 Based on Taleca's and Michael's candor and demeanor while testifying; the expert evidence that abused children may exaggerate or add more severe details with the intent of persuading adults that a smaller, but real, abuse actually occurred; several prior inconsistent or incomplete statements of the respective children closer in time to the actual events and another statement made while at Ms. Riley's house, I find that the only credible parts of these children's testimony is that they were beaten by Respondent with a spoon and/or a small paddle, like the paint stirrer, and I make this finding primarily because the children were immediately able to direct investigators to a spoon and a paint stirrer reasonably matching their descriptions, and these items, according to competent nursing opinion, matched some of the marks on each child. Taleca's denial at hearing that the spoon located in Respondent's nightstand was the same spoon used by Respondent to beat her does not undermine her credibility in light of her recognizing the paint stirrer as a "paddle." The fact that Taleca and Michael have subsequently accused Ms. Riley of paddling them suggests a developing pattern of attacking foster parents, but does not undermine the fact that in Respondent's case, both children could direct investigators to the specific striking implements or the fact that Michael was able to distinguish marks made on him by his "old mom" from those made by Respondent. As to Taleca's live and deposition testimony that Respondent intentionally burned Yana with a curling iron, I detect a desire to please whichever attorney was asking the question and to embellish so as to fill in parts of events about which she did not know. She admitted several times that she did not see Respondent intentionally burn Yana with a curling iron and the gist of her testimony is that she assumed that Respondent intentionally burned Yana, because often when Yana wiggled while the curling process was going on, Respondent said something like, "If you don't hold still, I will burn you." Taleca assumed the comment was a threat which was ultimately carried-out, while Respondent's statement may just as clearly have constituted a warning. Taleca's history of prior child abuse probably precludes her inferring an innocent motive. Respondent testified credibly that on October 31, 2000, she had intended to take Yana to a Halloween party at school after driving to a neighboring town to see her mother, who had been in and out of the hospital twice within the last few days due to complications of a heart attack. However, Yana had "the runs," so she had taken her home. The two curling irons Respondent used for herself and the girls in the morning had been plugged in all day because Respondent had forgotten to unplug them, and after the older children came home, while Respondent was in the shower, Yana was burned with the curling irons. Respondent suspected that Michael might have done it or Yana had done it herself. Respondent did not report the burns to DCF because the children's counselor, Ms. Sheppard, did not have a pager and had not given her an after-hours phone number, and also because between October 31 and November 3, 2000, Respondent's mother was in and out of the hospital twice more. The two Advanced Registered Nurse Practitioners testified that Respondent correctly treated Yana's neck burns with Neosporin. Both Advanced Registered Nurse Practitioners agreed that leaving the burns open to the air after applying Neosporin would have been appropriate, or if there were a chance dirt would get in the wounds when Yana went to school, it would have been appropriate to cover them with clean, sterile gauze. One nursing witness testified that a band-aid would be a sufficient covering, provided the gauze fully covered the burned area. Letting the sticky part of the band-aid touch the burned area would not be appropriate. Respondent used a regular-sized band-aid on the largest of the burn wounds on November 3, 2000, when she sent Yana to school. Later in the day, Mesdames Cooper, Sheppard, and Pendrak found that the sticky part of the band-aid had come in contact with the wound. Yana's out-of-court statements, while found individually reliable in terms of Section 90.803 (23), Florida Statutes, are not fully credible. The evidence as a whole, specifically Respondent's compelling and credible direct refutation of Yana's version of events and Michael's out-of- court statement overheard by Ms. Riley, are persuasive that Yana did not consistently relate Respondent to her burns because the burns were her own fault. Nurse Pendrak's testimony that the pattern of the curling iron burns is only consistent with abuse is not persuasive, since she cannot rule out Yana's involvement.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue Whether the decision of the Department of Children and Family Services (Respondent) to revoke the license of Martha Taylor (Petitioner) to operate a large family child care home is appropriate.
Findings Of Fact Petitioner is licensed to operate a large family day care home, located at 14019 219th Lane, Live Oak, Florida. Her license to provide child care dates from 1998. Jimmie P. Taylor is Petitioner's husband. He lives in the home where Petitioner operates the large family day care facility. Taylor is disabled and does not work outside the home. He is home during the day and has unsupervised access to the children in the large family child care home. On June 3, 2002, Respondent's protective services investigator contacted Deputy Sheriff Wayne Musgrove of the Suwannee County Sheriff's Department. The investigator had received an anonymous report that Petitioner's husband was the perpetrator of a verified report of child abuse. On June 4, 2002, Musgrove interviewed Taylor. Petitioner's husband admitted that in 1987, while Petitioner and her daughter were living in his house in Pinellas County, Florida, he had fondled Petitioner's then 16-year-old daughter in her genital area and that the daughter had fondled his genital area and "masturbated him." He and Petitioner were not married at the time. While the investigation in 1987 resulted in a confirmed report of child abuse, naming Taylor as perpetrator, no other legal consequences befell Taylor because Petitioner's daughter recanted her previous admissions in a circuit court proceeding regarding the matter. Later Taylor and Petitioner's daughter received counseling and today, according to Petitioner and Taylor, enjoy a normal relationship. Respondent's policy is never to license an individual to conduct a family day care business where an abuse perpetrator resides in the same home. Other than denying licensure, Respondent has no means to lessen or remove a threat to children in such a situation since unsupervised contact by such a person with children in the home is possible. In fact, Petitioner would not have received a license in 1998 had Respondent's representatives known about the 1987 confirmed report.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered confirming the revocation of Petitioner's license to operate a large family child care home. DONE AND ENTERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2002. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Martha R. Taylor Country Air Childcare Home 14019 219th Lane Live Oak, Florida 32060-5336 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
