The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family daycare home should be suspended based upon the Petitioner's husband's plea of nolo contendere to a disqualifying second degree felony.
Findings Of Fact The Petitioner, Sislyn Gonsalves, has operated a family daycare home at times pertinent hereto, including in 2005 up through the time of the hearing, pursuant to license number F12V00010. The family daycare home is located at 2820 Lake Helen Osteen Road, Deltona, Volusia County, Florida. The Petitioner and her husband Clayton A. Gonsalves have had repeated disciplinary problems with their 13 year old son, K. G. K. G. had been repeatedly in trouble at school and may have been involved in an incident involving a theft, of which his parents became aware. On or about April 16, 2005, an incident occurred in the Petitioner's home. The Petitioner's husband Clayton Gonsalves and the Petitioner were trying to leave for church that morning and to persuade their son K. G. to attend church with them. An argument between the son and Mr. Gonsalves ensued. During the incident Mr. Gonsalves picked- up a short piece of light weight PVC pipe, approximately three feet by three quarter's of an inch, and struck his son several times on the left shoulder and the right hand. The persuasive evidence in this case is that the blows with the light weight PVC pipe did not leave marks. The son, K. G., being angry and upset at the time, abruptly left the family premises. The Petitioner and her husband and other child thereupon preceded to attend church. Later that day, after the incident had apparently been reported to the police, the police arrested Mr. Gonsalves and charged him as having committed child abuse. On or about May 11, 2005, Mr. Gonsalves entered a plea of nolo contendere on a charge of aggravated child abuse, which is a second degree felony. This resulted from the incident described above. As a result of that plea Mr. Gonsalves was sentenced to a term of three years of probation, and adjucation was withheld. As a condition of his probation he was ordered to have "no violent contact" with the victim, K. G., and to "comply with the Department of Children and Family's conditions and case plans." Mr. Gonsalves works in the State of New York as a plumber. He returns to his family residence, to be with his family, whenever possible, between jobs. He resides there with the Petitioner and their children at such times. He is often present in the family residence while the Petitioner is providing daycare for other children and often assists her in providing care for the children. The unrefuted, persuasive evidence adduced by the Petitioner through her testimony and that of her witnesses establishes that she and her husband are loving parents who do not maintain an abusive home. They treat their own children and the children they provide daycare for, as clients, in a loving, responsible and positive way. The Petitioner is in the process of earning her college degree in Early Childhood Education and desires to continue in the business of providing daycare. The lack of an abusive climate in the home is borne out by the fact that the Petitioner's and Mr. Gonsalves's children are in the gifted program in school, and by the fact that K. G.'s grades and scholastic standing at school have marketedly improved since the incident in question. The Petitioner's witnesses, particularly her mother, described Mr. Gonsalves as a loving husband and father who does not commit abuse, who does not drink, smoke or abuse his wife or children. Witness Ayallo, the agency's Licensing Inspector, established that the Petitioner's family daycare home is always in compliance with relevant regulatory rules and statutes, and he corroborated the Petitioner's testimony concerning the history of disciplinary problems caused by her son. Witness Surgine, the Agency's Licensing Specialist established that the Agency only wanted to suspend the licensure because of the fact that the husband, Mr. Gonsalves, would, on occasion, be present in the home when child clients are present. The Agency did not feel that the incident justified a revocation of license. This is an unfortunate, isolated incident. The persuasive evidence of record shows that Mr. Gonsalves is not an abuser of his children, the children of others or his wife, the Petitioner. The Petitioner is operating her facility as an exemplary family daycare home and desires to continue to do so. Even though she and her family are enduring rather straitened financial circumstances, she is successfully pursuing a college degree in Early Childhood Education. The testimony of Ms. Corchado, whose son has been cared for by the Petitioner in excess of three and one-half years, corroborates the exemplary record and caring atmosphere maintained by the Petitioner in operation of her family daycare home. Ms. Corchado has tried many daycare facilities and believes that the Petitioner's is the best one she found in terms of providing a loving, positive, environment for her son. Her son "adores the Petitioner and her family" and has become very close to them, even attending church with them on occasion. The Petitioner helps her son with his school work and Ms. Corchado has never observed or learned of any abuse occurring in the home. The incident which occurred with Mr. Gonsalves and his son is clearly an isolated unfortunate occurrence. It was deeply regretted by all concerned even before the Agency Respondent became aware of it. It is ironic that the Petitioner, who has conducted an exemplary child care facility operation, has been placed at risk for losing her licensure status while other child care facilities licensed by the Respondent with more violations of record which can impinge on the adequate care of children can remain licensed under corrective plans and procedures. The Agency, commendably, has recognized the unjust, automatic operation of the statute at issue herein, in terms of the Petitioner's particular circumstances and incident, by declining to seek revocation of licensure but merely suspension until the issue of Mr. Gonsalves's residence in the daycare facility is resolved. In any event, this was unfortunate effort at child discipline which became a little too heated and went awry. As the Petitioner pithily and eloquently put it, "If you don't discipline your children, they will grow up and the police will do it for you."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services suspending the license of the Petitioner for the above found and concluded reasons but that the suspension be stayed while, under appropriate Department supervision, the Petitioner and Mr. Gonsalves resolve the issue of his residence within the family daycare home location possibility of the licensed daycare home being re-located to another premises or while Mr. Gonsalves acts to secure an exemption (if successful) from the above-referenced disqualifying offense. DONE AND ENTERED this 4th day of January, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 4th day of January, 2006. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sislyn Gonsalves 2820 Lake Helen Osteen Road Deltona, Florida 32738 George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 440 Daytona Beach, Florida 32114-3269
The Issue The issue 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 in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for licensure and regulation of child care facilities operating in the State of Florida. The Respondent is a licensed child care facility, Florida license number 400-9, located at 1221 South Washington Avenue in Apopka, Florida. On March 1, 2001, the Petitioner received a complaint related to alleged poor conditions at the Respondent facility, including unclean bathrooms, and unsupervised children. An investigator employed by the Petitioner was assigned to inspect the facility. He visited the child care center on the afternoon of March 1, 2001, and recorded his observations on an "inspection checklist." On March 1, 2001, the facility was observed to be "dirty and cluttered." One of the restrooms was unclean and apparently not functional. Additionally, three infants were left alone in a room without adult supervision. The closest adult to the infant room was conducting business with a customer and was not within sight of the children.
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 imposing a fine of one hundred dollars ($100) against the Respondent. DONE AND ENTERED this 29th day of August, 2001, 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 29th day of August, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street, Suite 1106 Orlando, Florida 32801 Carol Wiggins Central Avenue Child Care 1221 South Washington Avenue Apopka, Florida 32703 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue presented is whether Petitioner's license to operate a child care facility should be revoked.
Findings Of Fact At all times material hereto, Geraldine Lee was the owner and operator of a child care facility, licensed by the State of Florida and known as The Children's Palace II. On November 14, 2004, there were eighteen children in the care of The Children's Palace II. Each child was signed in by the child's parent when the child arrived each morning, and one of Lee's employees then signed that the child was actually there. The child was then signed out when the child was picked up that day. The facility was open until 10:00 p.m. However, the facility closed earlier if all the children had been picked up before that time. On November 14 when Taunya Patterson brought her six- month-old son Kenneth Geddes to the facility, she neglected to sign in her son, and no employee counter-signed. Thus, there was no written record that he was there. At that time, Geddes had been receiving child care at The Children's Palace II for two months. When Patterson returned to the facility at 9:00 p.m. to pick up her son, she found the facility closed, locked, and dark. She summoned the police, who, in turn, summoned Geraldine Lee, who came to the facility. She unlocked the facility and Patterson's son was in the crib where he normally slept, lying on his stomach and crying. The infant was unharmed. Geraldine Lee had left the facility that day at approximately 7:30 p.m. Before leaving the facility, she walked through but did not see any children still there. She left her employee Theresa Leverett in charge of the facility. At approximately 8:30 p.m. Lee returned to the facility to pick up her granddaughter. Leverett was leaving the facility when Lee was picking up her granddaughter. On December 3, 2004, the Department notified Lee that it was revoking her license to operate a child care facility effective immediately. On August 18, 2004, Lee had been issued a provisional license for The Children's Palace II, effective August 20, 2004, to February 19, 2005. Once before, The Children's Palace II had been issued a provisional license but had been issued a regular license thereafter. Prior to November 14, 2004, no child had been left alone in the facility. The only prior similar incident occurred when an employee walked out of a room where a child was present, thereby leaving the child unsupervised.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the Department failed to meet its burden of proof and dismissing its notice of intent to revoke the license of The Children's Palace II. DONE AND ENTERED this 6th day of December, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2005. COPIES FURNISHED: Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Acting General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Should an exemption be granted to the Petitioner who pled nolo contendere to a charge of child abuse?
Findings Of Fact Wanda Gudith operates from her home a child daycare service. Wanda Gudith is married to Dennis R. Gudith, who lives in the family home. On June 22, 1996, S.L.B. was seen by the emergency room at Flagler Hospital in St. Augustine, Florida. The records of that visit reveal that S.L.B. is a white male born on August 9, 1986. At the time he was seen, S.L.B. weighed 110 pounds. S.L.B. presenting complaint was a bruised and tender buttock. The records of S.L.B.'s hospital examination reveal that his left buttock was bruised and tender. It was reported in the hospital case history that the injury was caused by having been struck the previous day by "the baby sitter." Examination of the injury revealed no broken skin and no drainage. The final diagnosis was that S.L.B. had a bruised buttock. The medical report also indicates that the sheriff's department was notified. See Respondent's Exhibit No. 8. On July 19, 1996, a supplemental investigation was conducted by the St. Johns County Sheriff's Office. The victim, S.L.B., was interviewed and reported that he had thrown a toy car which nearly hit another child, where upon Wanda Gudith had sent him inside to be disciplined by her husband, Dennis Gudith. Dennis Gudith had him bend over and grab his ankles, and then struck him with a wooden cutting board. The victim reported that "it hurt badly." The victim also reported that later the same day Wanda Gudith spanked him on the same spot with a wooden spoon. The victim stated that Mr. Gudith had spanked him on previous occasions, but that it had not left any marks. The investigator's written report states that the photographs of the injury were reviewed, and a noticeable large bruise was observed on the left cheek of the victim's buttock. See Respondent's Exhibit No. 9. On August 26, 1996, the investigator interviewed Wanda Gudith. Ms. Gudith reported that she had baby-sat for S.L.B. for approximately a year and that he had lived with them for a few weeks while his father was out of town. Gudith said that they had had behavior problems with the victim and that he sometimes acted out. On the day in question, Ms. Gudith reported that the victim had been told several times not to throw things around the other children. When S.L.B. threw items again, Ms. Gudith sent the victim into the house to be disciplined by her husband. See Respondent's Exhibit No. 9. Mr. Gudith reported that the victim did as he had been told and that her husband spoke with him about not throwing things around the other children. Ms. Gudith stated that her husband then spanked the victim using as a paddle a wooden cutting board, which was turned over to the investigator as evidence. See Respondent's Exhibit No. 9. On August 27, 1996, the investigating officer met with the father of the victim, who signed a complaint affidavit against Dennis Gudith for child abuse. See Respondent's Exhibit No. 9. On September 9, 1996, the investigating officer forwarded the file to the state's attorneys' office for a decision on whether a case would be filed against Mr. Gudith. See Respondent's Exhibit No. 9. Dennis Gudith testified at the hearing. Mr. Gudith entered a plea of nolo contendere to the charges filed against him for child abuse because he had struck the child and because it was cheaper than contesting the charges. The court withheld adjudication and placed Mr. Gudith on six-months supervised probation. Among the conditions established by the court was that Mr. Gudith attend anger control counseling with the Salvation Army. Mr. Gudith successfully completed all of the conditions of his probation and was released early from probation. See Petitioner's Exhibit No. 4 with attachments, and Petitioner's Exhibit No. 5 with attachments. The attachment to Petitioner's Exhibit No. 6 reveal that both Mr. and Ms. Gudith have completed a 30-hour course of instruction on operating a home daycare facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department grant Mr. Gudith's request for an exemption. DONE AND ENTERED this 15th day of May, 1998, in Tallahassee, Leon County, Florida. _ STEPHEN F. DEAN 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1998. COPIES FURNISHED: Dennis R. Gudith 4225 Rues Landing Road St. Augustine, Florida 32092 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether the Beatrice Guardian Angel Daycare violated provisions of chapters 402 and 435, Florida Statutes (2012), and/or Florida Administrative Code Chapter 65C-22, such that its license should not be renewed.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by the Daycare. It is the Department's responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department inspects each licensed day care center three times a year: two unannounced routine inspections (to ensure compliance with the applicable laws and rules), and one renewal application inspection. In the event of a complaint, additional inspections and/or investigations are conducted. Ms. Giles owned, operated and directed the Daycare. The Daycare located on West Lancaster Road opened in November 2011, and was in continuous operation at all times material.6/ Ms. Giles opened the Daycare at this particular location after operating it at a different location. Luz Torres is a family service counselor for the Department. Ms. Torres is trained to inspect day care centers for initial applications, renewal applications and routine inspections. Ms. Torres is familiar with the Daycare, having inspected it several times while it was operational. Inspections of the Daycare revealed operational deficiencies during four inspections, dated February 15; June 20,; July 2,; and November 7, 2012. The specific deficiencies were set forth on inspection reports provided to Ms. Giles at the time of each inspection. Ms. Torres conducted a routine inspection of the Daycare on February 15, 2012 (inspection one). A number of areas of noncompliance areas included physical environmental issues, such as insufficient lighting, gaps in fencing, ground cover for outdoor equipment, and training. Other areas included: a lack of documentation of employee educational courses showing literacy and developmental course training, a 40-hour child care course, and 10 hours of in-service training; items in the first aid kit were missing; deficiencies in food and nutrition, such as unlabeled bottles and sippy cups; and deficiencies in children's health and immunization records, personnel records, and background screening. The Department issued an "Administrative Warning Notification" (notification) to Petitioner based upon the following violations: "[T]he facility's fencing, walls or gate area had gaps that could allow children to exit the outdoor play area. The gate was observed broke [sic] with gaps on both sides." This notification advised Petitioner that the "next violation of a licensing standard outlined in this notice, [would] result in an administrative fine." On June 20, 2012, Ms. Torres conducted a routine inspection (inspection two) of the Daycare. The noncompliant areas included: missing documentation for some children's immunization records; missing documentation of ten hours of in-service training for the Daycare's director; and missing documentation of background screening documents, including an affidavit of good moral character for employees. A second notification7/ (dated June 20, 2012) was issued to the Daycare following inspection two. This notification involved issues regarding a child's health and immunization records, and missing documentation for employees. One child's immunization records had expired. Four staff members were deficient regarding in-service training logs, and an additional staff member had not received the level two screening clearance. In response to a complaint (complaint one), Ms. Torres conducted an investigation of the Daycare on July 2, 2012. The Daycare was found to be out-of-ratio regarding the number of children to staff, and background screening documentation for level two screening for staff members was missing. In a mixed group of children ages one and two years old, the ratio of one staff for six children is required. At the time of the complaint one investigation, there was one staff per eight children. Although this ratio issue was rectified during the complaint one investigation, it was and is considered a violation. The documentation for the level two screening violation for the staff was not corrected during this investigation. A third notification was issued to the Daycare following the complaint one investigation. This notification involved the staff-to-child ratio, and the lack of background screening documentation. The Daycare was notified that the appropriate staff-to-child ratio must be maintained at all times, and the missing Level two screening documentation had to be resolved. This notification advised the Daycare that the "next violation of a licensing standard outlined in this notice, [would] result in an administrative fine." 8/ On August 1, 2012, the Daycare was notified that its license would expire on November 29, 2012. The Daycare's renewal application was due 45 days before the expiration date, or before October 15, 2012. The denial letter set forth that the Daycare's renewal application was filed on October 30, 2012.9/ In June 2012, Ms. Giles became aware that her daughter, Alexis Anderson, had a drug addiction problem when Ms. Anderson's baby was born addicted to drugs. Ms. Anderson and her two children were required to live with Ms. Giles while Ms. Anderson addressed her addiction problem. Ms. Anderson's two children attended the Daycare. Ms. Anderson would visit the Daycare to see her children. On November 7, 2012, as a result of another complaint (complaint two) being filed, DCF conducted an investigation of the Daycare. Ms. Giles reported that on two different occasions, two small bags were found at the Daycare. One small empty bag was found in the Daycare's common hallway. A second bag was found on a desk in the Daycare's office and contained a white residue. After the second bag was found and Ms. Giles was told by an employee what the bags might be used for ("people transport drugs in"), she suspected that Ms. Anderson might have left the bags at the Daycare. Also, after finding the second bag, Ms. Giles banned Ms. Anderson from the Daycare. There was speculation that the two bags contained an illegal substance; however, the two bags were discarded before any scientific testing could be done or any photographs could be taken. There is simply no proof as to what was in either bag.10/ There was no clear and convincing evidence that Ms. Anderson supervised or tended to children other than her own while she was at the Daycare. There was clear and convincing evidence that Ms. Anderson was at the Daycare on multiple occasions and had access to every room and child/children there. Ms. Anderson did not have the appropriate level two screening. In addition to investigating complaint two, child care regulations counselor Christina Bryant also observed inadequate ratios between staff and children, and a lack of qualified or unscreened individuals supervising children. Ms. Bryant observed one staff for five children in the zero to twelve month age group (ratio should be one to four), and she observed one staff to nine children, in the one-year-old classroom (ratio should be one staff to six children). Upon completing a review of the Daycare's record keeping, Ms. Bryant also found that background screening documents were missing for staff members. On November 14, 2012, Child Protective Investigator (CPI), Beauford White was directed to go to the Daycare and remove Ms. Anderson's two children from the Daycare.11/ When CPI White advised Ms. Giles he was removing the children from the Daycare, Ms. Giles became very emotional, and initially told CPI White he could not take the children. CPI White contacted his supervisor who directed CPI White to contact the Orange County Sheriff's Office (OCSO) for assistance in removing the children. Between the time the OCSO was called and when the deputy arrived, approximately 45 to 60 minutes, CPI White had obtained compliance, and Ms. Giles released the two children to his custody.12/ On Thursday afternoon, November 29, 2012, Ms. Giles was asked to attend a meeting on Friday, November 30, 2012, in the Department's legal office regarding the Daycare's license. Because of the short notice, Ms. Giles was unable to obtain an attorney to accompany her to the meeting on November 30, 2012. Ms. Giles attended the meeting by herself with a number of Department staff. Ms. Giles was given the following option: execute a relinquishment of the Daycare's license, or the Department would seek to revoke the license. Ms. Giles did not know the law. Ms. Giles executed the relinquishment13/ of the Daycare's license because she was thinking that "revoke sound[ed] horrible to" her. She did not want to relinquish her license, nor close her business, but she did not feel she had any choice in the matter. The totality of the circumstances under which Ms. Giles found herself renders the "relinquishment" less than voluntary. After this meeting, Ms. Giles returned to the Daycare and was present when Ms. Torres removed the Daycare's license from the wall. Mytenniza Boston, a Daycare employee, was also present when Ms. Torres removed the license. Ms. Giles did not tell Ms. Boston or any of the other Daycare employees that the Daycare's license had been relinquished, nor did she start notifying parents of the Daycare's closing. On Monday, December 3, 2012, around noon, Department investigators arrived at the Daycare and found children in the opened facility. Ms. Giles was at the Daycare making telephone calls to parents asking them to come pick up their child or children. The Daycare was open for business despite the fact that Ms. Giles had relinquished her license on Friday, November 30, 2012. On occasion Pervis Giles, Ms. Giles' then husband would walk to the Daycare to talk with Ms. Giles. Mr. Giles would also cut the Daycare's grass, unlock the Daycare's door for daily operations, and participate with Ms. Giles in making business decisions about the Daycare. Ms. Giles did not consider these activities to be working for the Daycare; however, common sense dictates otherwise. Ms. Giles has several children. At various times during the Daycare's operation, Ms. Giles' children were at the Daycare volunteering, cleaning up or helping with the Daycare children in some fashion. Ms. Giles' children did not have the required level two background screening as Ms. Giles did not know that her children needed to be screened. Ms. Giles' lack of understanding regarding who is required to be screened is troublesome. Ms. Giles has been in the daycare business for many years, yet she failed to comply with basic safety measures.
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 renewal application. DONE AND ENTERED this 22nd day of July, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2013.
The Issue The issue in this case is whether Respondent should approve Petitioner's registration to operate a family day care home.
Findings Of Fact The Parties Petitioner is a 25-year-old female who admittedly has been providing unlicensed child day care in her home for the past several years. While she has no formal training in child care, she has been employed in the child care field for many years and obtained her GED in 1995. Petitioner has been married to her husband, A.P., for six years, and they live together. Respondent is the state agency responsible for regulating child care facilities pursuant to Chapter 402. The Application On September 18, 2002, Petitioner submitted an application to Respondent seeking licensure to operate a registered family day care within her home located at 6351 Redwood Oaks Drive in Orlando, Florida. Respondent processed the application and effectuated the required background screening of the individuals living within the household, including Petitioner and A.P. The screening of Petitioner revealed that on October 3, 2000, a young girl, living within Petitioner's home and under her supervision, was removed following a report to the abuse hotline and the subsequent investigation by Donald Griffin, a protective services investigator employed by Respondent. The screening of A.P. revealed that he was arrested in October 2000 on charges of lewd, lascivious assault or act on a child; prostitution; lewd or lascivious molestation; renting space to be used for prostitution; and lewd or lascivious conduct. The screening further revealed that on May 15, 2002, the State Attorney's Office determined that the case was not suitable for prosecution and filed a "No Information Notice." Upon receipt and consideration of the screening results, Respondent denied Petitioner's application on January 23, 2003, advising her that: . . . the Department is unable to approve your application to operate a family day care due to safety concerns for children that may be placed under your care for the following reasons: Background screening revealed that a child was removed from your care following an allegation of abuse or neglect. Background screening revealed that a member of your household lacks moral character due to their arrest record involving minors which would place the children at risk of harm. With respect to Petitioner's screening results, Petitioner admits that a child was removed from her home, but alleges that the removal was at her request. Petitioner denies any allegation of abuse and insists that the removed child, her friend's daughter, was "extremely unruly and too difficult to handle." As a result, Petitioner claims that she requested that Respondent remove the child and Respondent complied. Respondent's investigator, Mr. Griffin, testified otherwise. Investigator Griffin stated that he personally investigated Petitioner following a report to Florida's child abuse hotline. He separately interviewed both Petitioner and the child and noticed clear bruises and welts on the child. Investigator Griffin determined that Petitioner's home was not suitable for the young girl and removed her from the residence. Mr. Griffin's testimony was more credible. No evidence was offered to support Petitioner's assertion. With respect to the screening results of A.P., Respondent presented compelling evidence that A.P. lacks the requisite good moral character. First, Respondent demonstrated and Petitioner admits that A.P. occasionally gets angry and lacks self-control. In fact, the local police department has responded to domestic disturbance calls from the family home on at-least two occasions. In addition, the evidence surrounding A.P.'s arrest demonstrates that A.P. lacks good moral character. Specifically, A.B., the alleged victim of A.P., credibly testified at hearing that in October 2000, at age 12, she and her minor female friend, L.M. were walking near their school during the early evening when an unknown black male, later identified as A.P., driving a green sports utility vehicle, offered them a ride. The female minors entered his S.U.V. and were taken to a convenience store and then to a hotel. A.B. testified that while in the hotel room, the male inappropriately touched her butt, pushed her on the bed and solicited her to have sex with him for money. A.B. said "no" to his offer and asked him to stop. Shortly thereafter, the male departed the hotel and abandoned the girls in the hotel room with the room key. The police were contacted and investigator Rick Salcido conducted an investigation. After interviewing the girls, Mr. Salcido acquired physical evidence at the hotel linking A.P. to the room and supporting A.B.'s allegations. He retrieved a copy of A.P.'s driver's license and hotel credit card used at check-in from the hotel manager. In addition to the physical evidence linking A.P. to the hotel, A.B. positively identified A.P.'s photo as the perpetrator. Moreover, the investigator determined, and Petitioner admits that A.P. owned and drove a green sports utility vehicle at the time of the alleged incident. While Petitioner asserts that she and A.P. were out of town and on vacation on the date of the incident, she admits that they returned home at approximately 7:00 p.m. that evening. Although A.P. was subsequently arrested, the State Attorney's Office later declined to prosecute and filed a "No Information Notice." At hearing, counsel for A.P. indicated that the statute of limitations had not expired and A.P. invoked his Fifth Amendment privilege to remain silent. A.P. declined to testify and answer questions related to his moral character and the circumstances of his arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for a registration to operate a child care facility. DONE AND ENTERED this 29th day of August, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 29th day of August, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Jeremy K. Markman, Esquire 800 North Ferncreek Avenue Orlando, Florida 32803 Paul Flounlacker, 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 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent proved the allegations contained in its January 30, 2004, notice of revocation of family day care home registration letter to Petitioner.
Findings Of Fact Respondent is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Petitioner, by and through aid, assistance, and training of the federally funded Weed and Seed Support Group program of the Fort Myers area, began her family day care home provider training in 2001 and, upon completion of training, was registered as a family day care home from July 25, 2002, to June 30, 2003. On June 23, 2003, Respondent acted upon Petitioner's re-registration application to provide child care in her home for up to ten children, effective June 30, 2003, through June 30, 2004. Respondent acknowledged that at the time Petitioner's registration was acted upon, Leona Mark, Petitioner's identified substitute caregiver, had cleared her for background screening but she had not completed either the minimum or 30 hours of family day care home training prior to caring for children in a family day care home. Notwithstanding the situation with Ms. Marks, Respondent's recommendation was to "Issue registration to Deborah Scurry to provide child care in her home for up to 10 children." Ms. Mark did not testify, and the record contains no evidence that Ms. Mark completed her training at any time prior to Respondent's notice of revocation letter of January 30, 2004. Respondent, by letter dated January 30, 2004, informed Petitioner that her family day care home registration was revoked. The revocation letter gave the following basis for revocation: On December 22, 2003, the licensing unit received a complaint that a nine month old sustained a skull facture while in your care. The complaint also stated that you left your daycare children with your 15 year old daughter. During the investigation, you denied ever leaving the daycare children alone and that you always took them with you. The Department, upon conducting interviews, has determined that you did leave the children with your 15-year-old daughter, which is a supervision violation. The letter cited Subsections 402.302(1) and (7) and 402.313(1)(a)4., Florida Statutes (2003), as the provisions determined to have been violated and the authority for revocation of the registration. The Injured Child D.B. is Petitioner's nephew, and he was routinely placed in her family day care home when his mother was working. On Friday morning at approximately 6:30 a.m., on December 12, 2003, L.B., D.B.'s mother, left D.B., a nine-month-old child, in Petitioner's family day care home. At that time, neither L.B. nor Petitioner noticed a bump on D.B.'s head. According to Petitioner, D.B. became "fussy" during morning breakfast at approximately 7:00 a.m., at which time she noticed a small bump on his head. The bump was soft to her touch, and she thought no more about it. During lunch, Petitioner's daughter noticed that the bump had gotten larger and told her mother, who, by telephone, attempted to reach L.B., but was unsuccessful. When L.B. came to pick D.B. up at approximately 6:30 or 7:00 p.m., on December 12, 2003, Petitioner and L.B. discussed the bump on D.B.'s head. L.B. recalled that while playing D.B.'s sibling had hit him on the head with a plastic toy bat at some earlier time and that D.B. had fallen out of bed and hit his head on the floor. L.B. testified that she does not know where D.B. hit his head. It could have happened at home while playing with siblings, when he fell out of bed, or when he was with his father. She was firm in her conviction and belief that D.B. was not injured while in Petitioner's family day care home. There is no evidence of record to account for D.B.'s whereabouts on Saturday and Sunday, December 13 and 14, 2003. On Monday, December 15, 2003, L.B. dropped D.B. off at Petitioner's family day care home. On Tuesday, December 16, 2003, D.B. was again dropped off at Petitioner's family day care home. On Wednesday, December 17, 2003, Petitioner noticed that the bump had gotten larger and called L.B. L.B. came later in the day and carried D.B. to the Emergency Room at Cape Coral Hospital for a medical examination. Medical Examination of the Injured Child A Medical Examination report, dated December 19, 2003, was completed by Susan Sherman (Nurse Sherman), ARNP of the Child Protection Team. The Medical Examination report provides Dr. Michael Weiss' findings, which are as follows: X-RAY FINDINGS: A copy of the report for CT of the head without contrast and a complete skeletal survey are available. These x-rays were read by Dr. Michael Weiss on December 19, 2003. On the CAT scan of the head without contrast, the findings are as follows, "The ventricles are normal in size and midline in position. There is no intracranial hemorrhage. No intra or extra- axial fluid collection. There is a stellate fracture of the left parietal bone. There is also a high right parietal fracture identified. There is no evidence of depression on either side. There is an associated soft tissue hematoma." The impression of the CT scan is as follows: "Biparietal skull fractures, rule out child abuse." Findings and recommendations were reviewed with Dr. Burgett at the time of study. (Dr. Burgett is a pediatrician at the Physician's Primary Care.) . . . (emphasis added) Notwithstanding the findings of Dr. Weiss, Nurse Sherman reported her impression and plan as follows: IMPRESSION: Biparietal skull fractures. From the x-ray report, the skull fracture on the left side of his head is a stellate fracture. There is also a fracture of the parietal bone on the right side of the head. These injuries are consistent with physical abuse. PLAN: The child will be followed medically by his primary care provider. At this time, I do not recommend the child be sheltered. My only recommendation is the child not return to the day care setting. This mother needs to find alternative childcare for [D.B.]. It was reasonable for Nurse Sherman to take the protective approach and recommend that D.B. not return to the family day care home because she believed Petitioner had a history of utilizing substitute caregivers who had not completed required training, and, she also believed that on more than one occasion in the past, Petitioner's child-to-child caregiver ratio was exceeded. An acceptable ratio requires a specific number of caregivers per the number of children within a specific age range. Petitioner had more children than she had certified caregivers required for the separate age range(s) of children found in her family day care home. However, the Department did not charge "past violations of overcapacity" and/or "utilizing substitute caregivers who were not properly qualified" in the January 30, 2004, revocation letter. The evidence of record was inconclusive to demonstrate to any reasonable degree of certainty: first, the date D.B. sustained his injury/injuries; second, whether D.B. was injured while in the care of Petitioner; third, whether D.B. was injured while in the care of his mother; or forth, whether D.B. was injured while in the care of his father. On December 22, 2003, Respondent received a compliant report of a license violation, to wit: over-capacity and background screening. The complaint report was assigned to and investigated by Celeste Davis and a second unnamed person. Ms. Davis closed her report on December 23, 2003. Ms. Davis' investigation found eight children in care: one infant, three preschoolers, and four school-age children. Petitioner was within her ratio at the time of this inspection. Through interviews with the children at the day care, Ms. Davis determined that Petitioner, on occasion, left her day care children alone with L.S., her teenaged daughter, who was not a qualified caregiver. Regarding D.B.'s head injury, Petitioner informed Ms. Davis that the injury did not occur when D.B. was in her care and probably occurred the night before D.B. was brought to her home. Ms. Davis cited Petitioner for one license violation, leaving her day care children alone with her teenage daughter. Ted Leighton investigated an Abuse Hotline Report filed on December 19, 2003. Mr. Leighton did not testify but his written report was introduced into evidence without objection. Respondent argued in its post-hearing submittal that information Mr. Leighton received from his interviews with four minor children, his review of reports from medical personnel and health care providers, and his conclusion that "it was 'probably' on December 15 or 16, 2003, D.B. was injured at the family day care home accidentally by another child when the Petitioner was not present," as fact. Respondent's argument is not based on facts, but upon uncorroborated hearsay, assumptions and conjectures of Mr. Leighton. For those reasons Respondent's argument is rejected. In support of Mr. Leighton's conclusions, Respondent cited the testimony of Nurse Sherman. Nurse Sherman concluded that D.B.'s injuries were "very serious and 'could have' been life threatening, 'could have' happened accidentally 'if' another child jumped off a bed, landing on D.B., while D.B. was laying on the floor with a hard object under his head." The intended purpose of Nurse Sherman's testimony was twofold: to demonstrate the severity of D.B.'s injury and the location D.B.'s injury was sustained. The inference drawn by Respondent was that a lack of supervision was the primary cause of the injury. This argument is likewise not based upon facts found in the evidence of record. Nurse Sherman's conclusions are but an extension of Mr. Leighton's assumptions and conjectures. This argument is likewise rejected. D.B.'s mother recalled one occasion when D.B. had fallen out of her bed at home. She testified that her older daughter told her that while playing with D.B., he had fallen from his bed to the floor on more than one occasion at home. She speculated that D.B. could have been injured at home or by her three-year-old son, who when playing with D.B. had struck him on his head with a plastic toy bat. L.B. testified further that she and Petitioner are related and that her three children have been continuously in Petitioner's family day care home since Petitioner has been qualified as a provider. She was certain that Petitioner did not and would not injure her children. She testified that D.B. "could have" suffered the injury to his head when he was in the care and custody of his father over the weekend. Of the several possibilities of the date, time, place, and in whose custody D.B. may have been when the injury occurred, the mother was not certain. The inconclusive and conflicting evidence regarding D.B.'s whereabouts and the identification of the person or persons who had custody of D.B. when his injury occurred is, as it must be, resolved in favor of Petitioner. Respondent failed to prove by clear and convincing evidence that D.B. was injured when in the care, custody, and control of Petitioner while in the family day care home as alleged in its notice of registration revocation dated January 30, 2004. Caregivers supervision and Over capacity Respondent demonstrated that as of June 13, 2002, neither Petitioner's 15-year-old daughter nor any other person present on the days of inspection who was serving as a caregiver was properly trained. By evidence of record, Respondent demonstrated that Petitioner was over capacity, based on the child-to-child caregiver ratio on or about June 2, 2001. With knowledge of the one occasion of over capacity by Petitioner, Respondent approved Petitioner's re-registration application on June 23, 2002, effective through June 30, 2003, and permitted Petitioner to provide care for up to ten children. The approved re-registration increased Petitioner's child care capacity. Respondent's January 30, 2004, letter did not allege an over capacity violation, and no other pleading filed by Respondent contained information from which Petitioner could have been so informed of the over capacity allegation. Respondent failed to prove that D.B. sustained his head injuries while in Petitioner's family day care home. Respondent has shown that Petitioner did on one occasion leave children in the care of a person or persons, including Petitioner's 15-year-old daughter, who were not trained, certified, or qualified as substitute caregiver(s). There is no evidence of record that Petitioner's violation of child-to-child caregiver ratio demonstrated either gross misconduct and/or willful violation of the minimum child care standards within the meaning of the statutes and rules charged. The evidence demonstrated that Petitioner did not fully understand the child-to-child caregiver ratio differentiations by age groups. Petitioner's lack of understanding does not absolve her of the obligation to know all rules and regulations. It does, however, provide a reasonable inference that the out-of-ratio situation was not an intentional act on behalf of Petitioner. Weed and Seed Support Group in the Fort Myers Area Petitioner presented the testimony of Susan B. Davis, a family child care specialist employed by the Weed and Seed Support Group of the Fort Myers area. The purpose and organizational goal of this federally funded agency is identification of economically disadvantaged persons who are interested in becoming day care providers in their homes in their respective communities. The methodology of the agency is to first assist those persons identified with acquiring required training and certification. Second, the agency assists the trained candidate(s) with the application process through Respondent. According to Ms. Davis, the federal grant overall objective is twofold: first, to seek, find, and train family day care home providers in the community and second, to provide a source of employment and income to the provider's family. As a direct result of this community service, other families within the economically disadvantaged community will have local and affordable family child care service within their respective communities. By accomplishing the identification and training of community child care providers, employed and unemployed parents in need of day care in the various Fort Myers communities will be the beneficiaries of the available family day care home, thereby enabling some parents to become employed and enhancing employment opportunities for employed parents. The Weed and Seed Support Group of the Fort Myers area offers free help and support to self-employed child care providers. In 2001, Ms. Davis identified and assisted Petitioner in becoming a qualified child care provider. Ms. Davis assisted Petitioner in acquiring her 30 hours of training to become a qualified child care provider. She introduced Petitioner and others to the rules and regulations of Respondent pertaining to child care providers. Thereafter, she would visit with Petitioner and others to whom she rendered assistance only as her time and scheduling permitted. Ms. Davis' last visit with Petitioner occurred sometime before Christmas of 2003. Though she had no knowledge of the injury suffered by D.B., she offered to render assistance and additional training, including assisting Petitioner in acquiring a functional understanding of Respondent's rules, regulations, proper maintenance of required records, and correct completion of required reports and forms, that would enable Petitioner to continue her self-employment status as a qualified child care provider offering daily child care services within her community.
Recommendation Based upon the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order: Finding that Petitioner left children at her family day care home during her absence from the premises under the supervision, care, and control of unqualified substitute caregivers; and Imposing on Petitioner a fine in the amount of $250.00; and, upon payment thereof, Set aside and vacate revocation of Petitioner's family day care home license/registration; and Issue to Petitioner a six-month provisional license. DONE AND ENTERED this 20th day of September 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2004.
The Issue The issue in this case is whether the Respondent, the Department of Health and Rehabilitative Services (HRS), should grant the application of the Petitioners, Charles Wenz and Janet Gallagher, for a family foster home license. 1/
Findings Of Fact Through series of circumstances, the Petitioners in this case--Charles Wenz and Janet Gallagher, husband and wife--came to know the children of a woman named N. M. 4/ Their priest told them about Nancy and her predicament. A serious drug and alcohol addict, and already the single mother of two boys (J. D., born December 30, 1977, and B. F., born January 7, 1983), each of whom had a different biological father, she was about to have another child by yet another man. The Petitioners were asked to help the family, and they agreed. Shortly after the third child--a girl, N. F., born November 4, 1988-- was released from the hospital, the mother asked the Petitioners to let the family live with them temporarily. Not long afterward, the mother slipped back to her way of abusing drugs and alcohol and left, leaving the children with the Petitioners. For some time, the Petitioners cared for the children without being licensed as a family foster home and without any financial assistance from HRS. Later, in approximately March, 1991, they became licensed as a family foster home for the specific and limited purpose of caring for the children of M. 5/ When it came to the children in their care, the Petitioners generally were very attentive to their needs for food, clothing, shelter and medical care, and they provided very well for the children, following up on all doctor appointments and the like. They were very conscientious in this regard. Generally, they got along well with the children, and the children tended to view them as if they were their real parents. As a result of their involvement with the family, the Petitioners came to know the children's maternal grandparents. While initially the Petitioners got along fairly well with the maternal grandparents, they had the opportunity to form opinions of them based on personal experience and stories related by the children and, later, by the fathers of the two boys. Essentially, the Petitioners thought the maternal grandparents were good grandparents, and they encouraged and cooperated in the maintenance of a relationship between the children and the maternal grandparents. At the same time, they did not perceive the maternal grandparents as a good option for permanent placement of the children. Besides the maternal grandparents' age and limited physical and emotional capabilities, and their lack of interest in being permanently responsible for the children on a full-time basis, the Petitioners also had a concern about what they understood to be the maternal grandfather's drinking habits. Instead, since reunification with the mother did not seem feasible to either the Petitioners or to HRS, the Petitioners felt the best option, at least for the boys, would be to investigate their reunification with their fathers. Along with HRS, the Petitioners were instrumental in locating the fathers of the boys and reestablishing contacts between them and their sons. Along with HRS, they actively encouraged and fostered the strengthening of the relationship between the boys and their fathers and worked with HRS to bring the men into a position to begin to care for their sons permanently on a full-time basis. When the Petitioners became licensed as a child-specific family foster home in approximately March, 1991, they agreed to work within the policies and procedures established by the Department and to accept supervision by a foster care counselor. There was no evidence that they were not supportive of the efforts outlined in the foster care agreement or plan. 6/ But problems between the Petitioners and the maternal grandparents developed between the time of the Petitioners' licensure and September, 1991. The problems got so bad that the HRS counselor assigned to the case had to conduct visitation in his office to ascertain who was causing the problems and how to best resolve them. The problems culminated in the maternal grandparents' ultimatum that they no longer could work with the Petitioners as foster parents and that they wanted the children placed with them, the grandparents. The problems worsened as HRS began to investigate the possibility of placing the children with the grandparents. 7/ The Petitioners were against this and attempted to use their positions as foster parents to thwart HRS efforts in that direction. A senior HRS counselor replaced the initial counselor in an effort to shepherd the grandparent placement, with its attendant visitations. But, although regular visitations by the grandparents was prearranged during the fall of 1991, 8/ the Petitioners consistently raised various obstacles to the grandparent visitations, requiring multiple interventions by the HRS senior counselor and others at HRS. Three times, despite HRS interventions, visitation had to be cancelled. The Petitioners' case was taking such an inordinate amount of time that the HRS senior counselor went to his supervisor for relief. The grandparents felt the need to go to court to have the court establish visitation over the Christmas holidays. A hearing had to be held on or about December 10, 1991, and the court granted the grandparents overnight visitation from December 25 through 30, 1991. On inquiring of the children on their return, the Petitioners believed the grandparents did not properly administer prescribed medications for two of the children and accused the grandparents of child abuse. HRS investigated and found that the grandparents had been in direct telephone communication with two of the children's doctors to resolve a discrepancy between two of their medication prescriptions and had followed the telephone instructions of the doctor in charge of the prescription. In connection with the problems with the grandparents, the Petitioners exhibited a clear tendency to try to manipulate the foster care system to their advantage, even unintentionally to the detriment of the interests of the children, and sometimes, out of overzealousness, through use of untruths and half truths. On one occasion, in an attempt to persuade the first HRS counselor not to pursue placement of the children with the grandparents, they told the counselor that an HRS protective services worker had told them that the maternal grandfather had a drinking problem. In fact, it was the Petitioners who had alleged to the protective services worker that the maternal grandfather had a drinking problem. On another occasion, to avoid allowing the grandparents to pick up the children for visitation, the Petitioners cited a supposed statute or rule making it illegal for the grandparents to provide transportation for the children. 9/ Once the boy, B. F., lost a hospital pass for use to visit his grandparents because of problems raised by the Petitioners concerning the legality of the grandparents providing transportation for him. In addition to the problems with the maternal grandparents, the Petitioners exhibited a certain tendency to take things into their own hands when closer contact and consultation with HRS would have been advisable. Once they made arrangements for one of the boys to be admitted to a psychiatric hospital without consulting with HRS and did not advise the counselor until shortly before admission. To attempt to justify their actions to the HRS counselor, the Petitioner told the counselor that the boy's family therapist strongly favored hospitalization for psychiatric treatment. In fact, the counselor later found that the family therapist only had said that it might become necessary at some point to hospitalize the boy. Once the Petitioner, Charles Wenz, used corporal punishment on one of the boys although he knew it was against HRS policy for operators of a family foster home to use corporal punishment. He explained that, due to the history of the Petitioners' relationship with these children, the Petitioners felt more like parents than foster parents and that he did not think it was appropriate in their case for the usual prohibition against corporal punishment to apply to them. Later, Mr. Wenz had another occasion to use a form of corporal punishment on the other boy. 10/ In January, 1992, the Petitioners applied to renew their "child- specific" license as a family foster home. On or about February 1, 1992, the court placed the children with the maternal grandparents, and the Petitioners converted their application to one for general licensure as a family foster home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order granting the application of Charles Wenz and Janet Gallagher for general licensure as a family foster home. RECOMMENDED this 13th day of July, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1992.
