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 for determination is whether Respondent properly denied Petitioner's application for renewal of her family child care home license.
Findings Of Fact Respondent, the Department of Children and Family Services (Department), issued a family child care home license to Vernetta Rossi (Petitioner) on January 15, 2001. The license was effective for a year, and automatically expired one year later. The maximum number of children for which Petitioner was licensed was ten. On or about November 11, 2001, Petitioner submitted an application for renewal of her family child care home license. On December 4, 2001, Donna Richey, an inspector with the Department went to Petitioner's home to conduct a re- licensing inspection. The purpose of the inspection was to determine if Petitioner was complying with the licensing rules and to make a recommendation on Petitioner’s application for renewal. Ms. Richey arrived at Petitioner’s house at about 1:30 p.m. Through a pane glass window, Ms. Richey observed a child sleeping on a mat in the dining room hall area. She also heard a child whimpering. Because Ms. Richey knew that there were children in the house and it was naptime, she knocked softly on the door for a few minutes. After getting no answer, Ms. Richey rang the doorbell twice, but still received no answer. After there was no response to Ms. Richey’s knocking on the door and ringing the doorbell, she walked to the back of Petitioner’s house, thinking that Petitioner may have been out in the back of the house. Finding no one there, Ms. Richey then returned to the front of the house and rang the doorbell again. When Ms. Richey returned to the front of the house, she observed that the child on a mat in the dining room hall area was still asleep. Upon returning to the front of the house, Ms. Richey tried the front door handle and discovered that it was unlocked. Ms. Richey then entered the house where she observed Petitioner asleep on the couch in the family room. Ms. Richey then called Petitioner, who woke up and appeared startled. Petitioner had dozed off and advised Ms. Richey that the reason she may not have heard the doorbell ring or the knock on the door was that she had a hearing loss and was lying on her “good” ear. Ms. Richey and Petitioner then toured the areas of Petitioner’s house where the five children, in Petitioner's care that day, were down for their naps. At the time of the tour, all five of the children, who were ages three and four, were in their designated napping areas and on their mats. One child was asleep on a mat in the dining room hall area; two children were on separate mats in one bedroom; one child was on a mat in the hallway; and another child was sleeping in the classroom area. During the time Ms. Richey was at Petitioner’s house for the re-licensure inspection, none of the children were crying, all the children were clean, and Petitioner’s house was neat and clean. There was a fence around the children’s playground in Petitioner's backyard. The fence had been approved by the Department as part of the licensure process. Also, there was a lock on the back door of Petitioner's house that was placed at a height that was not within the children's reach. There was a canal behind Petitioner’s house, which was about 60 yards from the house. In addition there was a five- foot high chain link fence that extended across the back of Petitioner’s property that served as a barrier between Petitioner’s yard and the canal. The fence provided a barrier that made it impossible for the children to easily access the canal. However, the Department determined that the canal was a potential hazard for the children in Petitioner’s care, when she was asleep and the front door of the house was unlocked. There was a main road within the subdivision in which Petitioner's house was located that was about 100 yards from her house. The Department was concerned that because Petitioner’s front door was unlocked and Petitioner had dozed off, the main road could have been a possible hazard to the pre-school children. During the approximately ten minutes that Petitioner was asleep, the children in her care were not being supervised. The Department requires that individuals licensed to provide child care supervise the children in their care. Following the Department’s re-licensing inspection on December 4, 2001, a report of neglect was made and an investigation was conducted. The results of that investigation and the findings and conclusions thereof are summarized in Abuse Report 2001-194692 (abuse report), which was completed on or about December 21, 2001. The abuse report found that on December 4, 2001, Petitioner fell asleep for a few minutes after she had put the five children in her care down for their afternoon nap and that during the time Petitioner was asleep, the children were not supervised. With regard to observations of Petitioner's “day care center,” the investigator noted in the abuse report that Petitioner’s home was “very clean and well kept” and “hazard free” and that there were no hazards observed in the home. Based on the findings of the investigator, relative to Petitioner’s falling asleep, the case was “closed with verified findings of neglect due to inadequate supervision with caretaker present.” The abuse report notes that officials closed Petitioner's facility on or about December 5, 2001. In addition to the incident that occurred on December 4, 2001, the abuse report referred to alleged incidents that took place prior to Petitioner’s being licensed in January 2001. These alleged incidents are not relevant or material to this proceeding in that they were not stated in the January 9, 2001, denial letter to Petitioner as the basis for the Department’s decision to deny Petitioner’s application for renewal of her family child care home license.1 The Department’s January 9, 2002, letter denying Petitioner’s application for renewal of her family child care home license stated in relevant part the following: This letter is to advise you that your application to renew your family day care license, dated November 11, 2001, is denied. In accordance with Section 402.310(10)(a), Florida Statutes, the department may deny a license for the violation of any provision of Sections 402.301-402.319, Florida Statutes, or rules adopted thereunder. The decision is based on the fact that abuse report number 2001-194692 indicates you have a verified report of child neglect for inadequate supervision-caretaker present. On December 4, 2001, during a re-licensing inspection, you were found to be asleep while five children ages, 3 years to 4 years, were in your care. This is in violation of Section 65C-20.009(3)(a), Supervision by Staff, Florida Administrative Code. This states[,] “At all times which includes when children are sleeping, the operator shall remain responsible for the supervision of children in care and capable of responding to the emergencies and needs of children. During the daytime hours of operation, children shall have adult supervision which means watching and directing children’s activities, both indoors and outdoors, and responding to each child’s needs.” Additionally, your actions were in violation of Section 402.301, Florida Statutes, which express [sic] the intent of the Florida Legislature to protect the health, safety, and well being of the children of the state and to promote their emotional and intellectual development and care. Petitioner does not dispute that she dozed off a few minutes on December 4, 2001, but testified credibily that this was an isolated incident. This is substantiated in a letter of support from Cynthia Ray, a former employee of Petitioner who worked at the center. Ms. Ray also served as a substitute for Petitioner and was listed on Petitioner's family child care home license as such. The letter from Ms. Cheryl Ray states that Petitioner has a high energy level, seldom sits down for any length of time, and is always "preparing, cleaning, organizing and doing book work." According to Ms. Ray's letter, it "was out of character for [Petitioner] to fall asleep" while the children were napping or at the center. With regard to the front door being unlocked, Petitioner explained that over the years, the policy or practice of the Department has changed. Petitioner was aware that at one time, the Department required that the door of a child care facility be unlocked so that parents could come in unannounced. Apparently, the Department’s current policy or procedures require that the doors of a child care facility be locked. In light of the policy, Petitioner stated that she would ensure that the doors of her family child care home would be locked. Petitioner has a combined 30 years of experience as a teacher and a principal in Montessori schools. At the time she was licensed by the Department, Petitioner used the Montessori method of instruction and had her home set up consistent with this approach. Parents of children who have been cared for by Petitioner expressed satisfaction, trust, and confidence in Petitioner’s ability to care for their children. They also believe that she has had a positive influence on the children's intellectual and emotional well-being. Many of the parents who testified had several years of experience working with Petitioner as the child care provider for their children. The parents believe that the educational program provided to their children while they were in Petitioner’s care is exceptional. Those parents whose children have left Petitioner’s program to attend kindergarten believe that the educational program provided by Petitioner prepared the children for kindergarten and made the transition to school easier for them. Parents who have had children in Petitioner’s care over the years and up until December 2001, have “dropped in” Petitioner’s home during the day when children were in her care and have never seen anything “amiss” or of concern to them. Parents who have had children in Petitioner's care testified credibly that Petitioner never neglected their children and that they felt their children were safe at Petitioner’s home and not in any danger. Despite the incident that occurred on December 4, 2001, the parents who testified at hearing continue to trust Petitioner to care for their children. The four-year-old daughter of Kevin and Rachel Walsh attended Petitioner's center from the time she was four weeks old, until the center closed in December 2001. The Walshes also have an older son who attended Petitioner's center for four years. During the time Petitioner has been caregiver for their children, the Walshes have been very pleased and satisfied with the care and the education that Petitioner provided to the children. For the past six years, Mrs. Walsh has dropped in unannounced at Petitioner's center and has been satisfied with what she has observed. According the to the Walshes, when in Petitioner's care, their children were in a "clean, safe, happy and learning environment" and learned "not only reading, writing, and math, but also manners and respect." The Walshes indicated that "those qualities make it comfortable for us to relax at our jobs knowing our kids are comfortable and happy." The Walshes live in the same neighborhood as Petitioner and, like Petitioner, they also have a canal behind their house. Because there is a fence which serves as a barrier between Petitioner's yard and the canal, the Walshes do not believe the canal was a hazard for children at Petitioner's center on December 4, 2001, or at any other time. On the day of the re-licensure inspection, the Walsh's daughter was not at the center. Nonetheless, the Walshes expressed utmost confidence in Petitioner to care for their daughter. Since Petitioner's center has been closed, the Walshes have not placed their daughter in another center. It is their desire to return their daughter to the care of Petitioner. Keith and Sharon Delafield's daughter was in the care of Petitioner on the day of the re-licensure inspection and had been in Petitioner's care for about three years. Mr. Delafield testified that during the time that his daughter attended the center, he visited the center, was satisfied with the care his daughter received, and always found the home to be neat and clean. Mr. Delafield believes that his daughter was the child who was whimpering on the day of the re-licensure inspection because she does not like to take naps. However, Mr. Delafield does not believe that she would have gone out of the house without permission of Petitioner. Moreover, despite the events of December 4, 2001, the Delafields trust Petitioner "whole heartedly" with the care of their daughter. According to the Delafields, during the time that their daughter was in the care of Petitioner, there was not a day that she "came home unfed, unclean, untaught, or unloved." Mr. and Mrs. Delafield, are planning to have another child and when they do, it is their desire to place the child with Petitioner. Valerie Senden has had two children attend Petitioner's center even though it is a 30 to 40 minute drive from her house. Ms. Senden's decision to place her children with Petitioner was made after she visited six other centers, all of which she found unsatisfactory. The basis of her dissatisfaction was her observation of the way that children were treated at those centers. During the time that Ms. Senden's children attended Petitioner's center, Ms. Senden made unannounced visits to the center and also spent the day and various parts of the day at the center helping Petitioner. During these visits, Ms. Senden never saw anything that caused her to be concerned about Petitioner's care of the children. Had Ms. Senden seen anything she didn't like or that she believed to be improper, she would have "pulled her children out of the center." Since Petitioner's center was closed, Ms. Senden has not placed her children in another center. Diann Myrick has a son who attended Petitioner's center from about August 2001 until it was closed in December 2001. Ms. Myrick does not believe that her child was ever neglected by Petitioner and is completely satisfied with the care that he has received from her. Moreover, Ms. Myrick testified that every time that she has come to the center to pick up her son, the door is always locked. According to Ms. Myrick, with Petitioner's guidance, her son is learning discipline as well as receiving an education. Ms. Myrick believes that these are things that she has been unable to find in private day care centers. With regard to Petitioner, Ms. Myrick testified that Petitioner is a good caregiver, and that both the children and the parents love Petitioner. Ms. Myrick testified that she wants to put her son in Petitioner's center when and if it is re-opened. Eight letters of support for Petitioner substantiate the testimony at hearing. In these letters, parents whose children have been in the care of Petitioner describe her as "a wonderful teacher and caregiver," an individual who is "honest, competent, and genuine," and a "teacher with compassion, care, and respect for others." Petitioner's center is described as being "not just clean, but immaculate." The parents expressed satisfaction with the education and care that Petitioner provided to their children; indicated that they trust Petitioner to care for their children; and believe it would be a disservice to the children, the parents, and the community to refuse to allow Petitioner to re-open her center.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a final order that denies Petitioner's application for renewal of her family child care home license without prejudice to her right to re-apply for such license in the future. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2002.
The Issue The issue 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 Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on June 17, 1998.
Findings Of Fact Petitioner was employed as a freezer-puller, by Respondent, a wholesaler of natural and specialty food products. The quality of Petitioner's work for Respondent is not at issue as Respondent acknowledged that Petitioner was a good worker and always got good evaluations. Around January 8, 1997, Petitioner requested and was granted leave under the Family Medical Leave Act. The request stemmed from his wife's terminal illness and his need to take care of her. Mrs. Gilliam passed away on February 15, 1997. On February 28, 1997, Petitioner's primary doctor wrote a note to Respondent that Petitioner "is excused from work this week and the next two weeks for medical reasons." On March 14, 1997, Petitioner's doctor wrote a letter to Respondent stating that Petitioner was suffering from complications of grief reaction. The letter recommended that Petitioner be placed on a ground level job for the next six months "until the severe impact of this grief reaction has a chance to lose it's sharpness and severity." It did not say that Petitioner could not return to work. On March 25, 1997, Petitioner's doctor wrote the following note on a paper entitled, "Certificate to Return to School or Work": "Pt. suffering from grief reaction. Therapist to see pt. on 4-3-97. Work status dependent on counseling progress." On the same date, Petitioner's doctor signed an insurance claim form which also stated that Petitioner's work status depends on what the therapist recommends. On April 3, 1997, Petitioner's doctor wrote a note which stated: To Whom it May Concern, Mr. Gilliam is presently in counseling. He has an appt. on April 17th & will have several consecutive visits. He is also attending a support group. Depending on his progress, he may be able to return to work mid-May. Thank you for your kind patience. On April 14, 1997, the insurance company which issued the group disability policy covering Respondent's employees wrote to Petitioner notifying him that benefits beyond April 3, 1997, were denied and giving him a time frame in which he could request a review of the claim denial. The letter stated in pertinent part, "You have been disabled for a grief reaction due to the death of your wife. Although we sympathize with your loss, we now feel that the grief reaction process is no longer a disabling condition." On May 5, 1997, Kim Hamrick, who at the time was Respondent's director of human resources but who no longer works for Respondent, wrote to Petitioner informing him that he had exhausted all twelve weeks of his family medical leave. The letter further stated: Once you exhaust all of your leave and you do not [sic] to return to work the company has a legal right to fill your position as a Puller/Stocker in the Freezer. Once you have been released to return to work we will look at placing you in another position within the organization. If you wish to continue your medical, dental and vision insurance at this time, you will still be required to pay your portion by the tenth of the month or coverage will be cancelled. Please feel free to contact me if you need any assistance. Keep me informed as to your work status. There was an unfortunate lack of communication between the parties after this point. In November or December of 1997, Petitioner called Glynda Copeland who was the employee of Respondent now handling this situation, asking about his insurance enrollment form for 1998. This phone call resulted in a meeting between Petitioner and Ms. Copeland. Petitioner was under the impression that he was still on a leave of absence. Ms. Copeland informed him that he had been terminated. The extent of the lack of communication between the parties was evidenced at hearing when it became clear that had Petitioner informed Respondent that he wanted to work and wanted his job back, Respondent would have allowed him to resume working. However, Petitioner was so devastated that he had been terminated that he did not ask to be able to resume working for Respondent. Petitioner maintains that he submitted all requested medical documentation to Respondent. However, the documents from physicians submitted by Petitioner to Respondent were insufficient to support the proposition that Petitioner was unable to work for medical reasons beyond April of 1997. Specifically, no doctor wrote that he was unable to work for medical reasons after April 1997.1 After learning that he had been terminated from employment with Respondent, Petitioner found other employment.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 16th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2001.
The Issue The issue in the case is whether the Petitioner’s request for exemption from employment disqualification should be approved.
Findings Of Fact In May of 1979, Viola D. Grady (Petitioner) was 26 years of age, six months pregnant, residing at an apartment complex, and the mother of at least one elementary-school-age daughter. On May 21, 1979, the Petitioner was walking a daughter to the school bus stop. Another female resident of the complex made a derogatory comment about the Petitioner as they walked by and stuck her foot out, tripping the Petitioner and causing her to fall to the ground. The Petitioner responded by raising herself from the sidewalk, picking up a piece of broken glass, and slashing the other resident’s arm. The other resident was transported to a medical facility for treatment of the cut. A law enforcement officer investigated the event and filed a report. Based on the incident, the Petitioner was arrested and charged with one count of aggravated battery. The Petitioner subsequently entered a plea of nolo contendere to battery. She was placed on probation for one year. There being no evidence to the contrary, it is presumed that she completed her probation without further incident. At the hearing, the Petitioner testified that she acted in order to defend herself and her daughter from the other resident. She testified that she did not know the other woman and does not know why the other woman instigated the incident. Other than the incident on May 21, 1979, there is no evidence that the Petitioner has ever been involved in any illegal behavior. Subsequent to the incident, the Petitioner moved out of the apartment complex and eventually into a house. The Petitioner has been married since 1984, has other children and grandchildren, and attends church with regularity. She has taken courses at a local community college. The Petitioner has been employed in various retail and food service positions since the 1979 incident. There is no evidence that her job performance has been unsatisfactory. There is no evidence that the Petitioner has ever acted in any manner harmful to, or presented a danger to, children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services grant the request of Viola D. Grady for exemption from employment disqualification. DONE AND ENTERED this 21st day of March, 2002, in Tallahassee, Leon County, Florida. ________________________________ 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 21st day of March, 2002. COPIES FURNISHED: Eric D. Dunlap, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Viola D. Grady 1907 Leisure Drive Orlando, Florida 32808 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
The Issue Whether the respondents’ foster home license should be renewed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Children and Families (formerly the Department of Health and Rehabilitative Services) is the state agency responsible for the regulation and licensing of family foster homes pursuant to section 409.175 (Florida Statutes (1995). On March 1, 1995, the Department issued a Certificate of License, number MCO395-001-2, to Carlos and Susan Del Valle to operate a foster home with a maximum capacity of two children of either sex between the ages of 6 and 18 years of age. This license expired February 28, 1996. The Del Valles had maintained a foster home license in Monroe County since 1991. On February 7, 1995, Mr. and Mrs. Del Valle signed the Department’s Agreement to Provide Substitute Care for Dependent Children. This document must be signed by foster parents each year as part of the relicensing procedure and each time a child is placed in the home. II. Providing care for a non-dependent child. In its Denial Notice, the Department alleged the following as the first reason for its decision not to renew the Del Valles’s foster home license: Agreement to Provide Substitute Care for Dependent Children (attached), Items 9 and 11. At the time of relicensing last year, it was brought to the department’s attention that you were providing care for a non-dependent child. This was discussed extensively with you during the relicensing visit at you home on February 7, 1995. You were informed at that time that caring for this child was in violation of your agreement with the department. Subsequently, it was brought to the attention of the department that this same child was ordered into Home Detention in your home on September 19, 1995, as a result of a juvenile offense. The child’s placement in your home was in no way related to your status as foster parents. Again, providing care for this child is in violation of your agreement with the department. In January, 1995, Mr. and Mrs. Del Valle took a child into their home who was not placed there by the Department and who lived there without the Department’s approval. C. P., a boy in his early teens, was living in the Del Valle home on February 7, 1995, when Helen Sample, a children and family counselor supervisor with the Department, made a home visit to conduct the annual interview that is a part of the Department’s procedure for renewal of a foster home license. At this visit, Ms. Sample told Mr. and Mrs. Del Valle that, because their home was a licensed foster home, they could not care for a child in their home who was not placed there or approved by the Department. Ms. Sample and Mr. and Mrs. Del Valle discussed C. P.’s family situation and the various facilities where he could be placed until his family situation improved and he could resume living at home. C. P.’s family began counseling shortly afterward, and he moved back into his family’s home several weeks after Ms. Sample’s home visit. The Del Valle home was relicensed as a foster home, effective March 1, 1995, however no foster children were placed in the home after March 6, 1995. In the late summer of 1995, C. P. got into trouble with the authorities, and he returned to live in the Del Valle home in September, 1995. A hearing involving C. P. was held on November 14, 1995, before a judge of the Juvenile Division of the Monroe County Circuit Court. At this hearing, Mr. and Mrs. Del Valle presented themselves to the court and offered to take C. P. into their home as an alternative to his being placed in detention. In the Order of Disposition dated November 22, 1995, the court withheld adjudication of delinquency and placed C. P. on community control under the supervision of the Department of Juvenile Justice. The court also stated in the Order that C. P. would be allowed to remain in the community control program as long as he abided by sixteen conditions enumerated in the order. Condition number 16 provides that C. P. is to “[s]tay with Foster Parent, Susan DeValle.” There is no question that the Del Valles are providing excellent care for C. P. and that he is doing well academically and socially. Nonetheless, the evidence is sufficient to prove that, because C. P. lives in their home, Mr. and Mrs. Del Valle have violated item number 9 of the Substitute Care Agreement, which provides: We will accept children into our home for care only from the department and will make no plans for boarding other children or adults. Failure to report law enforcement involvement. In its Denial Notice, the Department alleged the following as the second reason for its decision not to renew the Del Valles’s foster home license: 2. Agreement to Provide Substitute Care for Dependent Children, Item 11. The department has record of a Sheriff’s Department Internal Affairs investigation of an incident that occurred on March 23, 1995, where you interfered in a law enforcement situation involving a juvenile. You authorized your interference based on your licensure as a HRS Foster Parent. Your actions resulted in you receiving disciplinary sanctions that included a three-day suspension and three months added to your probation period as a corrections officer for Monroe County. You did not notify the department of this incident which is in violation of your agreement with the department. You also failed to immediately notify the department of another situation involving law enforcement. At a conference on February 14, 1996, with Ann Scurlock and Helen Samples, you and HRS discussed that incident. You stated that an allegation had been made that you spanked a child You also stated that the incident had been resolved and that the case was closed; “that it was no big deal, the Sheriff’s Office just wanted to get in my pocket.” The Sheriff’s Office has advised the department that the case is not closed, that the incident is still under review. Additionally, the Sheriff’s Office reported to HRS that there is a pending third additional Internal Affairs investigation. Item 11 of the Agreement to Provide Substitute Care for Dependent Children provides: We will notify the department immediately of any change in our address, employment, living arrangements, family composition, or law enforcement involvement. At all times material to the Department’s decision not to renew the foster home license issued to Mr. and Mrs. Del Valle, Mr. Del Valle was employed as a detention officer with the Monroe County Sheriff’s Office. At the February 7, 1995, home visit conducted by Helen Samples, which occurred not long after Mr. Del Valle began his employment with the Sheriff’s Office, Mrs. Del Valle asked Ms. Samples how the department defined “law enforcement involvement.” She asked this question because her husband would be continually “involved” with law enforcement because of his employment. Ms. Samples responded that the Department must be informed if Mr. or Mrs. Del Valle committed a crime or were arrested. 1 A. March 23, 1995, incident. Sometime between 9:00 p.m. and 11:00 p.m. on March 23, 1995, a teenage boy named N. J. told several friends that he intended to steal his mother’s car, run it into a tree, and kill himself. Someone notified N. J.’s mother, and she telephoned Michael Holler, a member of the Department’s Mobile Team Guidance Clinic and a psychologist who had been counseling N. J. and his mother for two or three weeks prior to this incident.2 Mr. Holler met N. J.’s mother in the parking lot of the commercial building in Tavernier, Florida, where N. J. and a few friends were hanging out. N. J. was extremely agitated, pacing back and forth and threatening to commit suicide. Mr. Holler was trying to get N. J. to talk to him, without much success, when Sergeant Bryant and Detective Sharpe of the Monroe County Sheriff’s Office arrived in response to a call from N. J.’s mother. Shortly thereafter, a third member of the Sheriff’s Office, Detective Koppins, arrived at the scene; he had been asked to look into the situation by Mr. Del Valle. Mr. Del Valle and N. J. had a close relationship which had developed over several years. N. J.’s mother approved of the relationship and frequently called on Mr. Del Valle to help her deal with her son. N. J. asked a friend to call Mr. Del Valle on the night of March 23, 1995, to let him know what was going on and to ask him to come to the scene. Detective Koppins and Detective Sharpe each spoke separately with N. J. and reported to Mr. Holler that N. J. did not want to talk to him, that N. J. did not like him, and that Mr. Del Valle was coming and would talk to him. Mr. Holler responded that the detectives were interfering with his relationship with N. J. and that he did not care if N. J. liked him, he was just trying to do his job. About this time, Mr. Del Valle arrived at the scene. He was very upset and agitated and began shouting as soon as he got out of his truck. He used profanity, accused the people at the scene of handling N. J. “all wrong”, and asserted that he was a foster parent and knew how to handle the situation. Sergeant Bryant took Mr. Del Valle aside and spoke with him, and Mr. Del Valle calmed down and talked quietly with Mr. Holler about N. J.’s situation. Mr. Holler’s supervisor, Dr. Matthews arrived at the scene a short time later, and the situation with N. J. was resolved. Dr. Matthews, who is the executive director of the Department’s guidance center, called Ms. Samples the day after the incident to report that Mr. Del Valle was present at the parking lot during the incident and had behaved inappropriately.3 The only knowledge Dr. Matthews had of Mr. Del Valle’s behavior on the night in question was the description of the incident provided to him by Mr. Holler. The day after the March 23, 1995, incident involving N. J., Ms. Samples also received telephone calls regarding the incident from “two Sheriff’s duty officers” whom she did not identify; Mr. Del Valle also notified her of the incident the day after it happened. There was insufficient evidence presented by the Department to support the first allegation in paragraph 2 of its Denial Notice that Mr. and Mrs. Del Valle “did not notify the department of this [March 23, 1995] incident which is in violation of [item 11 of] your agreement with the department.” Firstly, on the day after it occurred, Mr. Del Valle, Dr. Matthews, and two employees of the Sheriff’s Office notified Ms. Samples of the incident and of Mr. Del Valle’s part in it. Secondly, no reasonable explanation was given at the hearing to support the Department’s conclusion that Mr. Del Valle’s involvement in the events of March 23, 1995, constituted “law enforcement involvement” for purposes of the reporting requirement in item 11 of the Substitute Care Agreement.4 Rather, Mr. and Mrs. Del Valle were entitled to rely on Ms. Samples’s explanation at the February 7, 1995, home visit that the duty of foster parents to report “law enforcement involvement” to the Department involved situations where the foster parents were arrested or charged with commission of a crime. Finally, no credible evidence was presented at the hearing to support the Department’s allegations in the Denial Notice that, as a result of his involvement in the incident of March 23, 1995, Mr. Del Valle was the subject of an Internal Affairs Investigation by the Sheriff’s Office or that he was subject to employment-related disciplinary sanctions as a result of any such investigation. B. Investigation involving “spanking” incident. On April 7, 1995, N. J.’s mother made a complaint against Mr. Del Valle to the Monroe County Sheriff’s Office, alleging that sometime between September and December, 1994, he had committed a battery on her son. The Department was apparently referring to the investigation of this complaint, which involved an allegation that Mr. Del Valle had spanked N. J., when it alleged in the Denial Notice that Mr. and Mrs. Del Valle failed “to immediately notify the department of another situation involving law enforcement,” in violation of item 11 of the Substitute Care Agreement. Immediately upon receiving the complaint from N. J.’s mother, the Sheriff’s Office initiated a criminal investigation of the allegation and an inspector with the Office of Professional Standards was assigned to the case. She took the statements of N. J. and his mother in September, 1995, and May, 1995, respectively. In a document entitled “Internal Affairs Investigation 95-010 Criminal Notification,” which was dated October 5, 1995, and delivered to Mr. Del Valle on October 10, 1995,5 Mr. Del Valle was notified that he was the subject of an investigation of a complaint that he had committed a battery on N. J., a misdemeanor under section 784.03, Florida Statutes, and a violation of various policies and procedures of the Sheriff’s Office. At some point during the investigation, a determination was made that the case should not be pursued as a criminal matter, and it was subsequently treated as an administrative matter involving Mr. Del Valle’s status as an employee of the Sheriff’s Office. The evidence is not clear whether, at the time Mr. Del Valle was notified of the investigation, it was being handled as a criminal matter or as an administrative matter. The Department learned of the investigation when the Sheriff’s Office contacted the Department and requested the names of all of the foster children who had been placed in Mr. and Mrs. Del Valle’s home. The evidence is not clear as to who at the Department took this call, but Ms. Samples testified that, when asked the purpose for which the Sheriff’s Office needed the names, the Sheriff’s Office told the Department’s representative that an investigation was being conducted into an allegation that Mr. Del Valle had spanked a child. The Department learned of the investigation at some point before Mr. Del Valle was notified.6 On March 27, 1996, in the Management Review conducted as a result of the administrative investigation of Mr. Del Valle, it was found that the complaint of battery were not sustained by the evidence but that charges of perjury arising out of statements Mr. Del Valle made in interviews conducted January 5 and 19, 1996, were sustained. The recommended discipline was the withdrawal of Mr. Del Valle’s appointment as an employee of the Sheriff’s Office. His employment was terminated in early April, 1996. The evidence is not sufficient to support the Department’s position that Mr. and Mrs. Del Valle breached item 11 of the Substitute Care Agreement by failing to report the Sheriff’s Office’s criminal and administrative investigation of the “spanking” allegation. Firstly, the weight of the credible evidence establishes that the Department knew of the criminal investigation of the battery complaint before Mr. and Mrs. Del Valle knew of it. The weight of the credible evidence also establishes that Mr. and Mrs. Del Valle learned that the Department had previously been informed of the investigation at or shortly before the time Mr. Del Valle received the Criminal Notification. Therefore, it would be reasonable for Mr. and Mrs. Del Valle to see no need to notify the Department of something it already knew. In addition, even if the Department had not been aware of the investigation at the time Mr. Del Valle received the Criminal Notification, Mr. and Mrs. Del Valle were entitled to rely on Ms. Samples’s representation at the February 7, 1995, home visit that “law enforcement involvement” constituted arrest or commission of a crime. Since the Criminal Notification advised Mr. Del Valle that an investigation had been initiated into the complaint that he had committed a crime, the Del Valles could reasonably assume that they were not required to notify the Department until such time as Mr. Del Valle was arrested or charged with having committed the battery. The Department also alleged in the Denial Notice that, even though Mr. Del Valle had represented to the Department in February, 1996, that the “incident had been resolved and that the case was closed,” The Sheriff’s Office has advised the department that the case is not closed, that the incident is still under review. Additionally, the Sheriff’s Office reported to HRS that there is a pending third additional Internal Affairs investigation. The Department was apparently referring to the administrative investigation of the battery allegation after the determination was made not to pursue the complaint as a criminal matter and to the administrative investigation of charges that Mr. Del Valle had committed perjury in the statements he gave to the internal affairs investigator on January 5 and 19, 1996. Since both of these investigations related solely to Mr. Del Valle’s employment by the Sheriff’s Office, he was not obligated under any circumstance to notify the Department of these investigations as “law enforcement involvement.” Although not alleged in the Denial Notice, Department witnesses asserted at the hearing that Mr. and Mrs. Del Valle were required to report the administrative investigations pursuant to item 11 of the Substitute Care Agreement as a “change in . . . employment” because of the possibility that Mr. Del Valle could be suspended or terminated from his employment. Even had this been alleged in the Denial Notice as a ground upon which the decision to deny the license renewal was based, the language of the agreement is unambiguous and requires only that a change in employment be reported. Since the investigations were not such a change, Mr. and Mrs. Del Valle were under no obligation to report them. Not willing to work in partnership with the Department. In its Denial Notice, the Department stated the following as the third basis for its decision to refuse to renew the Del Valle’s foster home license: 3. At the conference on February 14, 1995, your letter of October 15, 1995, regarding the KISS Christmas project was discussed. The letter stated that, “at this point we do not want to deal with most members of HRS any more than we have to.” You stated the reason for the statement was that you felt HRS should have advised you of the spanking allegation. As was discussed, since the allegation did not involve a HRS child, HRS was not in a position to share information with you. Also HRS was bound by the rules of confidentiality governing the Sheriff’s Department’s Internal Affairs Division. Your sentiment does not reflect a willingness to work in partnership with the department which could compromise the care of dependent children placed in your home. “KISS” [Kids in Special Situations] is a non-profit organization started by Mr. and Mrs. Del Valle; the Christmas project referred to in the Denial Notice is the annual project in which KISS provides Christmas gifts to foster children and underprivileged children in Monroe County. It had been the practice of the Department’s local office to assist Mr. and Mrs. Del Valle in the Christmas project by distributing letters to foster parents and collecting information from the foster parents regarding the children so Mr. and Mrs. Del Valle could purchase appropriate Christmas presents for each child. Mrs. Del Valle’s letter of October 15, 1995, was directed to Ms. Gibson, an employee of the Department, and requested her help in gathering the information necessary to purchase appropriate presents for the children and in collecting the children’s Christmas lists. In the letter, Mrs. Del Valle stated: I am not in a position this year to chase down these lists through your various offices and to be perfectly honest at this point we do not want to deal with most members of HRS any more than we have to. Just in case you are not aware there have been accusations floating about for 5-6 months of Carlos being unjustly accused of spanking a child and no one saw fit to inform us of these accusations. This statement is the only evidence presented by the Department to support its determination that Mr. and Mrs. Del Valle were not willing to work in partnership with the Department to insure that adequate care would be provided to any children who were placed in the Del Valle home. Given the context in which the statement was made and the lack of any evidence tending to demonstrate that the Del Valles had ever refused to cooperate with the Department when providing care for a foster child, the evidence is insufficient to establish that the Del Valles were not willing to work in partnership with the Department as foster parents. The evidence presented is sufficient to establish the allegations in the Denial Notice that the Del Valles breached item 9 of the Substitute Care Agreement by taking C. P. into their home. The evidence presented is not, however, sufficient to establish the remaining allegations in the Denial Notice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the application of Carlos and Susan Del Valle for renewal of their foster home license for the period extending from March 1, 1996, through February 28, 1997, on the sole ground that a child was living in their home who had not been placed there by the Department and who was living in the home without the Department’s approval. DONE AND ENTERED this 4th day of February 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 4th day of February, 1997.
