The Issue The issue is whether Respondent properly denied Petitioner's request for exemption from disqualification from employment as a family foster home parent.
Findings Of Fact In 1989, Petitioner intervened in a fight that was taking place on the premises of an condominium complex managed by Petitioner and his wife. In order to stop the fight, Petitioner picked up a broom handle and hit one of the participants. Several months later, Petitioner was charged with aggravated assault. In August of 1990, Petitioner pled nolo contendere to the offense of aggravated assault, a third degree felony. The circuit judge accepted Petitioner's plea, withheld adjudication of guilt and imposition of sentence, and placed Petitioner on probation for four years. In October of 1990, the circuit judge entered an order reducing Petitioner's probation from four years to two years. The circuit judge modified Petitioner's probation to delete the requirement that Petitioner make restitution in July of 1992. At the conclusion of the two year period, Petitioner successfully completed his probation. In February of 1995, Petitioner's daughter was injured in a domestic dispute in her home. When Petitioner arrived at his daughter's residence, the police directed him to wait outside. When Petitioner refused to cooperate, the police arrested him. The greater weight of the evidence indicates that Petitioner did not assault the police officers. The state attorney filed an information in April of 1995 charging that Petitioner resisted arrest without violence. In the mean time, Petitioner and his wife filed an application to become foster parents. Respondent's review of the application revealed that Petitioner previously served two years probation for aggravated assault. Respondent also became aware of Petitioner's pending charge for resisting arrest without violence. On or about July 12, 1995, Respondent notified Petitioner that he was disqualified from being licensed as a family foster home parent because of the 1989 felony offense for aggravated assault. Petitioner requested exemption from disqualification. On or about September 8, 1995, Respondent conducted an exemption hearing to consider Petitioner's request for exemption from disqualification. The exemption review committee was particularly concerned about Petitioner's pending case. By letter dated September 18, 1995, Respondent denied Petitioner's request for exemption. Petitioner requested a formal hearing by letter dated September 27, 1995. In October of 1995, Petitioner signed a deferred prosecution agreement in which he admitted that the facts alleged in the information charging resisting officer without violence to his person were true and correct. The state attorney dismissed the 1995 case charging that Petitioner resisted arrest without violence on January 30, 1996. On or about February 19, 1996, Respondent conducted a second hearing to consider Petitioner's request for exemption from disqualification. The exemption review committee confirmed their original decision to deny Petitioner an exemption. Petitioner is the parent of two living adult children and one deceased adult child. He has been interested in helping young people all of his adult life. Over the years, Petitioner has been a positive role model for the youth in his community as well as his own children. Petitioner and his wife have always provided a stable family environment for their family with an emphasis on the development of a strong work ethic. Together they valiantly faced the challenge of coping with a severely disabled child until his death. Both of them are committed to giving of themselves and sharing their home with children in need. Petitioner seeks to become a family foster home parent for children with special needs. Specifically, the children have a DSM-III diagnosis for a mental health disorder and been identified as presenting exceptionally challenging behaviors. Working with emotionally handicapped children requires a particularly high degree of patience. Children with behavior problems create confrontational situations; therefore, the foster parent of such children must maintain a calm demeanor regardless of the circumstances. Petitioner's reputation as a man of integrity and a productive member of society is commendable. However, his responses to two emotional situations in 1989 and 1995 create a question whether he would always react appropriately to the "acting out" behavior of children. Petitioner has not provided clear and convincing evidence that he is entitled to an exemption from disqualification from employment as a family foster home parent.
Recommendation Based upon the findings of fact and the conclusions of law, it is recommended that Respondent enter a Final Order denying Petitioner's request for exemption from disqualification from employment as a family foster home parent. DONE and ENTERED this 1st day of May, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1996. APPENDIX CASE NO.95-5618 The following are the Hearing Officer's specific rulings on the findings of facts proposed by Respondent in its proposed findings of fact. Petitioner's Proposed Findings of Fact Petitioner did not file Proposed Findings of Fact. Respondent's Proposed Findings of Fact 1. Accepted in Findings of Fact 5 of this Recommended Order. 2-3. Accepted in Findings of Fact 6 of this Recommended Order. 4-5. Accepted in Findings of Fact 7 of this Recommended Order. 6. Accepted in Findings of Fact 8 of this Recommended Order. 7. Accepted in Findings of Fact 9 of this Recommended Order. First sentence accepted as restated in the preliminary statement of this Recommended Order. 8A, 8B, and 8C accepted as restated in Findings of Fact 2, 4 and 8 respectively. 8D--accept that C.L. disputes his guilt; greater weight of evidence shows C.L. pled nolo contendere to aggravated assault and served term of probation; greater weight of evidence shows C.L. signed a deferred prosecution agreement admitting the facts involving the charge of resisting arrest without violence. 8E accepted in Findings of Fact 10 and 11 of this Recommended Order. 8F accepted in Findings of Fact 12 of this Recommended Order. Accepted in Findings of Fact 13 of this Recommended Order. COPIES FURNISHED: C. L. (Address of Record) Ellen D. Phillips, Esquire Department of Health and Rehabilitative Services 210 North Palmetto Avenue Suite 412 Daytona Beach, Florida 32114 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondent Nina Diamond has taken care of other people's children at least since 1961. As long as the law has required such registration, her residences have been registered as home day care centers. In addition, she has taken care of more than 150 foster children. Five or six years ago she obtained an emergency shelter family home license for the first time. After routine annual renewals, the question arose whether one Thomas Floyd Mash was sharing the licensed premises, a house at 2139 Faulk Drive in Tallahassee, with her. Mr. Mash, who was convicted in 1987 of armed robbery and kidnapping, Respondent's Exhibits Nos. 7, 8 and 9, spent time in prison and is now on probation. On March 29, 1991 Mr. Mash and Ms. Diamond purchased the house at 2139 Faulk Drive, taking title and giving a mortgage together in both their names. Respondent's Exhibits Nos. 5 and 6. Ms. Diamond and her family furnished the down payment, but her income was (and remains) too low to borrow the money secured by the mortgage by herself. At least until November of 1991, Mr. Mash helped with mortgage payments. When they bought the house, Mr. Mash, Ms. Diamond and her son, a middle schooler, moved in. In late November of 1991, Mr. Mash rented a room in Beth Edwards' home, and Ms. Diamond told HRS personnel that he had moved out. Until recently, petitioner told probation officers that Mr. Mash, who receives his mail at 2139 Faulk Drive, lived with her, while assuring HRS that he did not. Since November of 1991, Cathy Asbell has seen Mr. Mash at 2139 Faulk Drive with some frequency, including on or about September 4, 1993, in the late afternoon. Martha Salas assumed he lived there, so often did she see him when she dropped off three-year-old Esmerelda between eight and ten o'clock evenings, on her way to work. She last saw him at the house two to three weeks before the hearing. Ms. Diamond herself testified that he was wont to come for one- to three-hour visits afternoons, straight from driving the dump truck he is hired to operate. HRS counsellors Rosina Roberts Butler and Irene Ruth Adams (who has since taken other employment) saw Mr. Mash at 2139 Faulk Drive toward the end of 1991 and the beginning of 1992. He was at the house every Saturday morning Ms. Adams came by. Mid-day January 28, 1993, Ms. Butler saw Mr. Mash enter the house and make sandwiches for five or six children Ms. Diamond was caring for at the time. Among Mr. Mash's obligations as a probationer has been a duty to keep the authorities apprised of a current address. He has consistently given 2139 Faulk Drive as his address, before and after December 9, 1991, the only pertinent date on which he gave any other address. Probation officers found him at the house on several occasions. On July 22, 1993, a probation officer saw him driving away from the house at quarter past six o'clock in the morning.
Recommendation It is, accordingly, RECOMMENDED: That HRS deny petitioner's application for relicensure as an emergency shelter family home. DONE AND ENTERED this 6th day of December, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2035 Petitioner's proposed finding of fact No. 1 has been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 2 and 3, it was not clear how long the room was rented for or that Mr. Mash ceased to reside at 2139 Faulk Drive while the room was rented. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 6 and 8 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, it was not proven that petitioner represented herself as Mr. Mash's wife. Respondent's proposed finding of fact No. 7 pertains to a subordinate matter. With respect to respondent's proposed finding of fact No. 10, it was not clear how long the room was rented for or that Mr. Mash ceased to reside at 2139 Faulk Drive while the room was rented. COPIES FURNISHED: Marc E. Tapps, Esquire Legal Services of North Florida, Inc. 2119 Delta Boulevard Tallahassee, Florida 32303-4220 Charles A. Finkle, Esquire District Legal Counsel 2639 North Monroe Street Tallahassee, Florida 32399-2949 Robert Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's child care license should be renewed based upon a purported violation of rules contained in Florida Administrative Code Chapter 65C-20, concerning adequate supervision of children left in the Petitioner's care and custody.
Findings Of Fact The Petitioner, Clara Fail, is the operator of a licensed child care home or facility. The Respondent is an agency of the State of Florida charged with licensure and regulation of the operation of child care facilities in accordance with Florida Administrative Code Rule Chapter 65C-20. By its letter of July 7, 2004, the Respondent Agency advised the Petitioner that her application to renew her license to operate a child care facility was denied based upon failure to adequately supervise a child left in her care. In essence, it is charged that the Petitioner failed to supervise a minor child left in her care by failing to safely maintain the child at the Petitioner's home, the licensed facility. On or about April 9, 2004, Heidi Stalice who lives in the neighborhood of the Petitioner's daycare facility located a nine year-old child wondering on her street. The nine-year-old identified himself and was unsure where he lived, upon inquiry from Ms. Stalice. Ms. Stalice took the child to her nearby residence and kept him safe with her own son, who is approximately the same age. Mr. Stalice attempted to locate the child's address by driving him around the neighborhood without success. She then contacted the Marion County Sheriff's Office and Deputy Shively. Deputy Shively went to Ms. Stalice's residence and also contacted the foster care personnel of the Department. He was advised by them that the child's foster mother was Patti Green. The employees at the foster care office made contact with Ms. Green who advised them that the child was supposed to be at the Petitioner's house at 5501 Southeast 29th Court, his "babysitter." Deputy Shively made contact with the Petitioner Clara Fail, by phone who advised him that this was the first day she had kept the child who was a foster child of Ms. Green and had been placed in foster care with her the day before. Ms. Fail advised Deputy Shively that the child had walked away from her residence earlier that morning at approximately 11:00 a.m., and had returned a short time later and ate lunch. Ms. Fail advised Deputy Shively that the child again left the residence on foot at approximately 2:00 p.m., at which time she stated that she called the foster mother Ms. Green, at work, but did not get a response. Investigator Blystone spoke with Deputy Shively by phone and advised the deputy that the foster mother, Patti Green, was going to Ms. Stalice's residence and that he was to relinquish custody of the child to Ms. Green, his foster mother with the understanding that the child was not to be taken back to Ms. Fail's residence until an investigation by DCF could be completed. Ms. Michaeline Cone is a family services counselor. She and her supervisor Diana McKenzie, who is a family services counselor supervisor both went to Ms. Fail's home to investigate this matter. Ms. Fail acknowledged the incident and told Ms. Cone that the child had wandered away twice and she had been unable to keep him in the fenced area that day. Ms. McKenzie established that children playing in the fenced yard area at Ms. Fail's home could not be in Ms. Fail's view at all times if Ms. Fail was inside the house, and that therefore to that extent they were sometimes unsupervised. Upon Ms. Cone's June 2, 2004, visit she had asked Ms. Fail if the three dogs she saw present in her yard had been vaccinated. Ms. Fail replied that she did not own any of the animals and that they belonged to neighbors. Ms. Cone requested that the dogs be removed from the property and that the gates be secured so that the animals could not return to the property. On June 15, 2004, when Ms. McKenzie and Ms. Cone again made an inspection of the Fail home, Ms. McKenzie observed Ms. Fail taking the three dogs from the front of the yard to the rear yard. When asked about the dogs during that visit Ms. Fail once again stated that the dogs did not belong to her. Ms. McKenzie again reminded her to remove the dogs from the premises.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services imposing an administrative fine in the amount of $500.00 and imposing the requirement of a provisional licensure not to exceed six months duration after which licensure shall be again reviewed by the Department, and during which six month period at least monthly inspections for the safety and proper operation of the facility shall be conducted. DONE AND ENTERED this 6th day of April, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 6th day of April, 2005. COPIES FURNISHED: Joe Garwood, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Clara Fail 5501 Southeast 29th Court Ocala, Florida 34480 T. Shane Deboard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
The Issue The issue is whether Respondent properly denied Petitioner's request for exemption from disqualification from owning/operating a family day care home.
Findings Of Fact On December 12, 1971, Petitioner and her husband began fighting. Petitioner stabbed her husband on his upper left arm with a knife after he hit her in the head with a bottle. There is no evidence that Petitioner or her husband required hospitalization as a result of this incident. Based upon the above-referenced incident Petitioner and her husband were both charged with aggravated assault. Subsequently, they pled guilty and were convicted of assault and battery, a misdemeanor offense. They both received a suspended sentence of 10 days in jail and a fine of $30. In November 1974, someone at her grandmother's home whipped Petitioner's son with a belt. Petitioner went to her grandmother's house to find out who was responsible for the beating. While she was there, she threatened to get her gun if her aunt's boyfriend hit her son again.1 The gun was in Petitioner's car. As a result of this incident, Petitioner was arrested for aggravated assault. She subsequently pled guilty to assault, a misdemeanor offense, and paid a $50 fine. In 1975, Petitioner separated from her husband. They were divorced in 1985. Petitioner raised two children from this marriage as a single mother. These children are adults now and no longer live with Petitioner. In 1978, Petitioner was arrested for retail theft. The charge for stealing a can of motor oil was not prosecuted. However, Petitioner was convicted of "opposing the police" and of possession of less than 500 grams of marijuana. She paid a fine and court costs. In 1986, Petitioner was involved in a loud argument with her boyfriend. She was arrested and charged with breach of the peace and resisting arrest without violence. Petitioner subsequently pled guilty to a breach of the peace for which she paid a fine. In 1990, Petitioner pled guilty to retail theft for shop lifting a dress. Her 30-day jail sentence was suspended. She paid a $500 fine. The record does not indicate whether Petitioner ever remarried. However, she has two additional children, ages 7 and 11, who currently live with her. Petitioner has never had any problems with any of her children. Petitioner earned a high school diploma. She has worked as a certified key punch operator and a certified home health aide. She has completed the training to become a certified child care worker. Petitioner is remorseful for her criminal record. She does not want her family or her preacher to know about her record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter an Final Order denying Petitioner an exemption from disqualification pursuant to Section 435.07, Florida Statutes. DONE AND ENTERED this 28th day of April, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1999.
The Issue The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's refusal to renew Petitioner's license.
Findings Of Fact Petitioner Linda Stewart, on behalf of Stewart Family Day Care (Petitioner), received the business’ first license to operate a family day care center for no more than 10 children on December 20, 1996. Annual renewals of the license followed until January 2002, following Stewart Family Day Care’s renewal application filed the first of that month. On January 22, 2002, Petitioner was notified that the Department of Children and Family Services (Respondent) had declined to renew Stewart Family Day Care’s license to operate as a family day care. Denial was based on Petitioner’s September 24, 2000, arrest and subsequent conviction for Driving Under the Influence of Alcohol (DUI). License denial was also based on a report made to Respondent of domestic violence (Report No. 2000-075894) in the home in which Petitioner operated the Stewart Family Day Care. An additional report, Report No. 2001-04761, which made allegations that Petitioner was intoxicated while caring for children was closed as unfounded. At the time of both occurrences for which Respondent had concerns, there were no children in the care of Petitioner Stewart with the exception of her son, who was at the time of the alleged domestic violence 16 years of age. As established by the evidence, Petitioner was not the first aggressor and did not initiate the altercation that occurred in her home when a guest, not a live-in as alleged in the report, with too much to drink became violent, hitting Petitioner. Petitioner’s son went next door at his mother’s request and called law enforcement. Following Respondent’s refusal to renew Petitioner’s license, Petitioner has become actively involved with Alcoholics Anonymous (AA). Petitioner’s sponsor in AA testified that Petitioner attends meetings and is sincere in her commitment to AA. Petitioner, it is specifically found, has effectively rebutted through clear and convincing evidence, the allegations of domestic violence upon which Respondent relied for denial of re-licensure. Additionally, the evidence convincingly establishes that the DUI offense committed by Petitioner, at night, was unrelated in any way to her day care business. Further, as established by testimony of parents at the final hearing, Petitioner enjoys their full confidence with regard to the care afforded their children. Licensure renewal has never been denied to Petitioner in the past. Additionally, she has attended, through the years, numerous seminars and short courses to compliment and increase her proficiency in the area of child care.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is Recommended that a final order be entered granting renewal of Petitioner’s license to operate a day care center. DONE AND ENTERED this 4th day of June, 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 June, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 R. Eric Rubio, Esquire 2407 East Bloomingdale Avenue Valrico, Florida 33594-6404 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the application filed by Jerika Casado (Petitioner) for licensure to operate a Registered Family Day Care Home should be approved.
Findings Of Fact On May 22, 2006, the Petitioner filed an application for licensure to operate a Registered Family Day Care Home. The Respondent reviewed the application and conducted a background screening as required by statute. By certified letter, dated August 17, 2006, the Respondent denied the Petitioner's application. As identified in the letter, the grounds for the denial were as follows: District Screening Coordinator has notified us that you have been disqualified from working as a caretaker for children. The letter provided no further information specifying the reason for the disqualification. At the hearing, the Respondent's witness testified that an incident of felony theft by shoplifting was the disqualifying offense. During the screening process, the Respondent obtained criminal records stating that the Petitioner had been arrested on April 17, 2003, and charged with a battery in Seminole County, Florida. The records also stated that the Respondent had been arrested on November 26, 2004 and charged with a third- degree count of felony grand theft in Orange County, Florida. The Petitioner was born on August 18, 1987. Petitioner was 15 years old at the time of the battery and 17 years old at the time of the theft. The Petitioner completed a pre-trial diversionary program and the battery charge was not prosecuted. According to the police report, which the Petitioner did not dispute at the hearing, the grand theft arrest was for shoplifting. The total retail value of the items shoplifted was $360.86, which constituted a third-degree felony pursuant to Subsection 812.014(2)(c)1., Florida Statutes. On June 6, 2005, the Petitioner was placed on probation for a period of six months for the theft, and supervisory responsibility was assigned to her mother, with whom the Petitioner resided. There is no evidence that the Petitioner did not comply with the terms of her probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for licensure to operate a Registered Family Day Care Home be denied. DONE AND ENTERED this 14th day of December, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th of December, 2006. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Jerika Casado 525 Monica Rose Drive, No. 632 Apopka, Florida 32703 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times material hereto, Respondent was a licensed operator of a Family Day Care Home located at 2927 Monte Carlo, Orlando, Florida. Licenses to operate a Family Day Care Home are issued by the Department of Health and Rehabilitative Services for periods of one year. Respondent's license was first issued in 1991 and was last renewed on June 21, 1994. It was valid through June 21, 1995. Respondent's Family Day Care Home has been closed voluntarily since July 18, 1994. Respondent submitted an application to renew her license prior to its June 21, 1995 expiration date. Petitioner denied Respondent's license renewal application by letter dated June 21, 1995. Petitioner has not cited Respondent for any code violations in her home at the time of the renewal. At the time of Respondent's application for license renewal, she met all training requirements for an operator of a family day care. In November of 1993, while in the care of Respondent, a child had suffered burns while at Respondent's family day care home. No charges, criminal or administrative, were filed against Respondent and her license was renewed the following year. In mid-June, 1994, Vanecia McCree, a 24-month old child began attending Respondent's day care, along with her brother and sister. On July 18, 1994, the child had been dropped off at Respondent's family day care home by her mother, Michelle McCree, at approximately 10:30- 11:00 a.m. When the mother dropped off the child on July 18, 1994, she informed Respondent that she wanted the child to change from regular diapers to pull-ups. She requested that Respondent to start potty training the child. Respondent told Ms. McCree that the child was not ready for pull-ups yet because she displayed no signs of using the restroom on her own. When Respondent first attempted to have the child use the bathroom on the morning of July 18, 1994, the child appeared "hysterical" and "frantic" and appeared to be in pain. When Respondent asked the child if she was in pain, the child nodded her head in the affirmative. This caused Respondent to be very concerned about the child's condition. Respondent did not call the mother or Department of Health and Rehabilitative Services at that point because she had been informed by the child's grandmother that the child had "knots" in her genital area and that the child had an infection. Respondent had been informed by the child's brother that the child had been taken to the hospital the previous night. The child was under Respondent's constant supervision the entire day. The only time during the day that the child was not constantly in the same room as Respondent was while the child was sleeping. During the time the child was napping, Respondent was out of the room during certain periods, but constantly kept the child in her sight. Throughout the course of the day, the child never fell, never appeared to sustain any injury, and never had an outburst which would indicate she had been injured. At approximately 4:45 p.m., when Respondent took the child to the restroom, she discovered spots of blood in the child's pull-up diaper. Upon noticing the spots of blood in the child's pull-up diaper, Respondent immediately telephone the child's grandmother, Barbara McCree. Respondent telephoned the child's grandmother because the grandmother was the person who arranged for the children to attend her facility. Respondent told Barbara McCree that she had discovered "a little blood" in the child's diaper and that the child should be taken to the hospital. Barbara McCree told Respondent that she would call the child's mother to pick up the child, and requested that Respondent save the pull-up diaper and give it to the mother. The mother arrived at Respondent's family day care home at approximately 5:10 p.m. to pick up her children. Upon her arrival, Ms. McCree did not examine the child to see where the blood in the diaper might be coming from. Respondent was upset but gave the pull-up diaper that contained the spots of blood to the mother upon her arrival. Ms. McCree took the child home prior to examining her. When she checked the child, her diaper was full of blood. Ms. McCree took the child to the hospital where she was examined, and on the following day had stitches to close a laceration in her vaginal area. Because of the nature of the injury, it was elected to take the child to the operating room for examination under anesthesia; however the child had eaten two bags of potato chips and some Coke during the extended stay in the emergency area causing the delay in performing the surgical procedure. There was no significant bleeding at the time of the initial examination on July 18, 1994. The injury was corrected surgically on the following morning. It has not been determined when the injury to the child occurred. After extensive examination of the genital area, the injury appeared to be most consistent with a traumatic injury. Following the completion of the investigation, no criminal charges were filed, nor any administrative action taken against Respondent's license. Petitioner's decision to deny Respondent's license renewal was based upon the Licensing Supervisor's belief that the injury to Venecia McCree occurred while the child was in Respondent's care. Respondent's license renewal application was not denied based on any other reason. There was no medical determination that the injury to the child had occurred while the child was in Respondent's care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent's application for renewal of her Family Day Care license be GRANTED. DONE and ORDERED this 14th day of August, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4036 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Petitioner did not file proposed findings. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 (in part), 39 (in part), 40 (in part), 41, 42, and 43. Rejected as irrelevant and immaterial or subsumed: paragraphs 7, 8, 38 (in part), 39 (in part), 40 (in part). COPIES FURNISHED: Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Robert J. Crohan, Jr., Esquire Wade Coye and Associates 2511 Edgewater Drive Orlando, Florida 32804 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
