The Issue The issue is whether Respondent should renew Petitioner's license to operate a large family child care home.
Findings Of Fact Petitioner has owned and operated Jeannie's Child Care in her home as a licensed 24-hour facility since 1988. Petitioner's license allows her to keep up to 12 children at a time. She also owns another offsite daycare center that is not at issue here. Petitioner's license to operate a large family child care home expired on December 2, 2001. Prior to the expiration of the license, Respondent designated Petitioner's facility as a Gold Seal Quality Care Program. There is no credible evidence that Petitioner is responsible for any child being spanked with a paddle or a belt. She normally puts children in the corner for time out when they misbehave. However, competent evidence indicates that Petitioner sometimes threatens to spank children that are difficult to control. On at least one occasion, Petitioner spanked third and fourth grade sisters with a rolled up newspaper, telling them that if they behaved like dogs, she would treat them like dogs. On other occasions, Petitioner spanked C.F. and F.D. by hand. Because C.F. was particularly hard to manage, his mother and her boyfriend gave Petitioner permission to spank C.F. The children in Petitioner's care sometimes bite other children. Usually these children are toddlers. To discourage biting, Petitioner told her staff to put a drop of hot sauce on a finger then put the finger in the child's mouth and on the gum. Petitioner used hot sauce in the manner described on F.D. and at least one other toddler. Petitioner's adult son drove the facility's vans. He also played with the children in the yard. At times, he would let the children exercise with him by doing push ups or sit ups and running laps. Occasionally, Petitioner's son or teachers at the facility would encourage C.F. or other school-aged children to exercise and run laps. The purpose of the exercise was to burn excess energy. To the extent that exercise was used to control the behavior of the children, there is no persuasive evidence that it was excessive. It is acceptable to discipline children by placing them in time-out. It is not acceptable to require the children to hold their hands up in the air or to hold books in their hands during a time-out period. There is no persuasive evidence that Petitioner was responsible for children having to hold their hands in the air or to hold books in their hands while they were in time-out. Petitioner's method of disciplining children varied depending on how difficult it was to control them. In some cases, the parents of the children approved Petitioner's unorthodox discipline. However, there is no evidence that any child in Petitioner's home facility were bruised or physically injured as a result of punishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order renewing Petitioner's license to operate a large family day care home subject to appropriate terms and conditions. DONE AND ENTERED this 18th day of July, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Edward L. Scott, Esquire Edward L. Scott, P.A. 409 Southeast Fort King Street Ocala, Florida 34471 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's application to adopt L. H. should be granted.
Findings Of Fact Petitioner, Debby Sclafani (Sclafani), is a former foster parent for Respondent, Department of Children and Family Services (Department). On March 4, 1998, L. H., a foster child born on December 18, 1993, was placed in Sclafani's home. L. H. had been sexually abused when she lived with her biological mother. When she came to live with Sclafani, L. H. acted out sexually, including masturbating. L. H. also engaged in self-mutilating behavior and had nightmares. L. H. was being seen by Marion Koch, a therapist at the Center for Children in Crisis. In midsummer of 1998, Sclafani also began seeing a therapist, Gloria Watt, at the Center for Children in Crisis. During the therapy sessions with Sclafani, Ms. Watt became concerned with Sclafani's preoccupation with L. H.'s sexual behavior. Ms. Watt told the therapist that she had asked L. H. which finger she used when masturbating and to demonstrate what she did. The child complied with Sclafani's request. If Sclafani caught L. H. masturbating, she would take the child's stuffed toys away as punishment. Ms. Koch and Ms. Watt attempted to educate Sclafani about parenting and child development, including ways to redirect L. H.'s sexual behavior. The therapists told Sclafani to stop focusing on L. H.'s masturbation, but Sclafani was unable to deal with the child's sexual behavior and could not follow the suggestions of the therapists. In September 1998, the Center for Children in Crisis shut down, and the therapy sessions with L. H. and Sclafani stopped. Sometime during the fall of 1998, the parental rights of L. H.'s mother were terminated. It was the Department's policy that once a parent's rights are terminated, the foster parent should not talk to the child again about the parent. However, after L. H.'s mother's rights were terminated, Sclafani continued to pray with L. H. for L. H.'s mother's sins. Sometime after L. H.'s mother's parental rights were terminated, L. H.'s father's parental rights were also terminated. L. H. became a candidate for adoption, and her case was transferred to the adoption section of the Department. Sclafani applied to the Department to adopt L. H. L. H. was given a pre-adoptive psychological evaluation by Dr. Shelia King. L. H. told Dr. King that Sclafani spanked her and slapped her face. L. H. had been told by Sclafani not to tell the doctor that she had been spanked. When L. H. was returned home after the evaluation with Dr. King, L. H. told Sclafani, "The doctor knows that you whoop me." When Sclafani became L. H.'s foster parent, she signed an "Agreement to Provide Substitute Care for Dependent Children" and agreed to abide by the following provisions of the agreement: This child is placed in our home on a temporary basis and is at all times under the supervision of the Department. We are fully and directly responsible to the Department for the care of the child. We will take no action to acquire legal custody or guardianship of the child. We will hold confidential all information about the child and his family and will discuss such information only with a representative of the Department or with appropriate specialists at the request of the Department. * * * 8. We will participate with the Department in planning for the child, which may include adoption placement, transfer to another foster home, or return to parent(s) or relative(s). * * * We will comply will all requirements for a licensed substitute care home as prescribed by the Department. We will immediately report any injuries or illnesses of a child in our care to the Department. * * * 19. We will abide by the Department's discipline policy which we received during MAPP training. Sclafani agreed to and executed the Department's discipline policy which states, "The substitute care parents must not use corporal punishment of any kind." Sclafani admitted to spanking L. H. on several occasions. The Department referred Sclafani to Dr. Shelia King for a psychological evaluation on January 5, 1999. In her evaluation report, Dr. King stated: . . . [Sclafani] would come to expect a child to fill her needs as opposed to her filling the child's. Should a conflict arise, Ms. Sclafani would put her own needs first. As an aside, she would not accept or believe this was occurring. Due to her inability to take care of herself emotionally, she will become depressed and withdrawn from time to time. * * * It must be noted that no small measure of concern results from the fact that Ms. Sclafani attempted to prep this child prior to her (the child's) evaluation by admonishing her not to advise this psychologist of the fact that Ms. Sclafani spanks her upon occasion. This indicates that while aware that this is not a behavior which would be acceptable to the Department of Children and Families, she nevertheless will engage in it as a method of discipline. More distressing is that she then not only will lie about it herself but also encourage the child to do something which is clearly wrong and tell a lie by omission in order to protect herself. A more appropriate response would be to merely admit that she believes spanking is an appropriate form of punishment and seek advice on how to handle misbehavior in a more acceptable fashion. * * * The area of concern most prominent in this evaluation is Ms. Sclafani's relationships. Testing indicates someone who is narcissistic and dependent upon others, including her child, for validation and self-esteem. Her history suggests a lack of boundaries between her own parent and herself. Some of Ms. Sclafani's comments suggest this same lack of awareness and boundaries with her foster child. While she does seem open to listening to interpretations and looking at her own behavior, testing also indicates that while she may appear to do so, anger and resentment build, eventually causing her to deny any problems or to reach out for help, and inhibit what appears to be genuine insight. Dr. King recommended that the adoption proceedings be delayed and that Sclafani enter individual psychotherapy. Sclafani had begun working at a child care center, and her medical benefits did not begin until April 1999. Due to the lack of insurance, Sclafani postponed seeing a therapist until April. She attended therapy sessions two times. In May 1999, Sclafani engaged in a verbal altercation with her supervisor at the day care center where she worked. She told her supervisor that she was giving her thirty-day notice and quitting her job. The supervisor informed her that was not necessary because she was fired. The bottom line was that Sclafani was without a job and medical benefits. She had inherited some money from her father's estate and decided to take a vacation. When the Department learned that Sclafani was without a job, a decision was made to remove L. H. from Sclafani's foster home. On May 21, 1999, L. H. was removed from her day care center and placed in another foster home with a couple who have applied to adopt her. Sclafani was asked to pack a suitcase for L. H. with her clothes and other belongings. Sclafani did pack the suitcase, but she also hid notes to the child among the clothes in the suitcase. A few days after L. H. was removed from Sclafani's care, Sclafani met with L. H., her guardian ad litem, and representatives from the Department to bring closure to the placement. Sclafani became very emotional during the meeting, which upset the child. On July 1, 1999, Sclafani went to the day care center where L. H. had been placed by her new foster parents to see L. H. Sclafani told the assistant director of the day care center that she was inquiring about the pre-kindergarten class for a neighbor's child. The assistant director took her to the classroom where L. H. was in class. Sclafani immediately walked over to L. H. and asked her if she were happy. Sclafani told L. H. that if L. H. was not happy that she would fight for her. L. H. began to cry hysterically. The assistant director realized who Sclafani was and asked her to leave the building. On the same day as the day care incident, L. H. and her foster father were eating ice cream outside an ice cream shop located in a shopping plaza. L. H. told her foster father that she saw Sclafani, who was in her car turning up a lane in the parking lot. A few minutes later, Sclafani drove by again in the opposite direction, waved at L. H., and left the shopping plaza. Prior to the incidents at the day care center and the shopping plaza, L. H. had been transitioning to her new home very well. Following the incident at the day care center, L. H.'s play in therapy became aggressive, and L. H. told her therapist that she was afraid Sclafani would take her and expressed anxiety about the likelihood of this happening. Because of Sclafani's actions, the Department sought a restraining order against Sclafani. On July 29, 1999, Judge Ronald V. Alvarez entered an Order Granting Emergency Petition for Injunction, ordering that Sclafani refrain from contacting L. H. wherever the child may be found while the court had jurisdiction over the child. In the order, the court stated: . . . Contact with Ms. Sclafani will hinder the child's future attachment with another family and create more, further damaging confusion in the child's life. The child's permanency is undermined by Ms. Sclafani's contact or attempted contact with her. The granting of a protective order is necessary to prevent such acts from happening. Permanency with her new family cannot be attained until [L. H.] is free to live without the fear of interruption by Ms. Sclafani. This order is necessary to protect the child's emotional and mental health from being at risk of grave and lasting harm and to support her permanency. Since L. H. has been removed from Sclafani's home, she has ceased masturbating and no longer self-mutilates. She is happy and well adjusted in her new home. According to her guardian ad litem, L. H. has blossomed and is now being a child in contrast to her actions when she was with Sclafani, where L. H. appeared to be "cowed" by Sclafani. L. H. has always wanted a daddy, and now she has a foster father in her new home. Sclafani had chosen a friend to be L. H.'s father figure. Unfortunately, her choice had an active, non-expiring domestic violence restraining order against him. L. H. loves her new foster parents and wants to be adopted by them. The new foster parents love L. H. and want to adopt her. Since L. H. has been with her new foster parents, she has not asked to see Sclafani. Sclafani had listed her pastor and his wife as a reference on her application for adoption. The pastor and his wife indicated on the reference that they did not know Sclafani well enough to make a recommendation that she was qualified to adopt a child. In order to process the adoption application, the Department looks at the applicant's medical history. Sclafani's medical records reflect a high frequency of doctor visits and current, on-going prescriptions for anti-anxiety medications. The evidence was unclear if Sclafani had found gainful employment since the termination of her employment in May 1999. The evidence did show that while she was a foster parent for L. H. that she worked for three different employers and was unemployed when L. H. was removed from her care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Debby Sclafani's application to adopt. DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1999. COPIES FURNISHED: Mary Jane Fitzgerald, Esquire Harvey Building, Suite 1300 224 Datura Street West Palm Beach, Florida 33401 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 Debby Sclafani 7581 West Lantana Road Lake Worth, Florida 33467 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The Department of Health and Rehabilitative Services (HRS) seeks an administrative fine of $100 from the Wesley Child Development Center (Wesley) for violation of rules related to child supervision. The issues are whether the violation occurred and whether the fine is appropriate.
Findings Of Fact Wesley Child Development Center II is a child care facility licensed by the Department of Health and Rehabilitative Services (HRS) for operation at 42 East Jackson Street, Orlando, Florida. It is a pre-school facility associated with First United Methodist Church. On January 31, 1995, some time between 3:50 and 4:50 p.m., there were approximately seventeen (17) children and four (4) staff on the playground. The playground is confined with a sturdy, four-foot chain link fence. A.N. was a two-year old toddler on the playground; his teacher was Pat Vetter. A.N. had been playing with buckets and cars by himself near the fence and Ms. Vetter could see him through a play tunnel where two other children were playing. After he played alone for about 10-15 minutes, Ms. Vetter needed to start picking up toys. A.N. gave her his bucket. She turned from him and had taken about five steps when she heard him cry out with an angry cry. She turned back and saw him sitting on the ground with his legs out in front; he had been standing at the fence looking out at the parking lot. Ms. Vetter picked up A.N. and he stopped the angry cry, but continued whimpering. She consoled and held him until his mother arrived. There were no visible signs of any injury: no bruises, blood, scratches or swelling. When his mother picked him up, A.N. did not want to walk. She took him to a restaurant for supper, but later took him to the doctor for an examination. X-rays detected a spiral fracture of the child's femur bone. The cause of the injury remains a mystery to the child care facility staff, who were appropriately dismayed, and to the HRS staff who thoroughly investigated the incident. Dr. Seibel, the child protection team physician, conjectured that A.N. must have attempted to climb the fence, hooked his foot and fell, twisting his leg. No one observed the fall. Ms. Vetter was responsible for A.N.'s supervision and that of three other children on the playground. She was near him and aware of what he was doing. The accident occurred in the brief instant that she turned away to put up some toys; she did not leave the playground. The direct supervision staff to child ratio at the facility and on the playground was better than the 1:6 or 1:11 required by HRS' rules. There is no evidence that the staff were gossiping or engaged in any non-supervisory activity. There has never been a problem with supervision at this facility before, according to the HRS inspectors. No one contests that the child was injured at the facility. Ms. Vetter believes that he could not have had the fracture when he came to school that morning. Although other children have climbed on the fence, she has never observed A.N. trying to climb it. Still, the fence is the only plausible explanation for the injury.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter its final order dismissing the administrative complaint. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of October, 1995. MARY W. CLARK, 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 27th day of October, 1995. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District Legal Counsel Department of Health and Rehabilitative Services Suite S-827 400 West Robinson Street Orlando, Florida 32801 Elizabeth Jenkins Director Wesley Child Development Center II 142 East Jackson Street Orlando, Florida 32801
The Issue The issue in this case is whether Petitioner's application for a license to operate a family day care center should be granted.
Findings Of Fact DCF is the state agency responsible for, inter alia, the approval and monitoring of family day care homes. Petitioner Karen G. Flanders ("Flanders") has been working in the child care field for several years. On or about April 21, 2006, Flanders submitted a Family Day Care Home Registration form, which is an application seeking approval to operate a small day care home. As part of the application process, Flanders agreed to allow DCF to conduct a Central Abuse Hotline Record search to determine the existence of any complaints or actions against her. The consent form Flanders signed allowing the search included a provision that the department would see any investigation resulting in "verified indicators." During its processing of the application, DCF determined the existence of an investigative report concerning Flanders. The incident in the report allegedly occurred on September 1, 2005. Flanders was alleged to have grabbed, slapped, and punched a child, C.S., while working as a day care worker for Kids Together day care facility. Flanders was immediately terminated from employment by her employer. The Central Abuse Hotline was contacted immediately. By her own admission, Flanders was the caller. Pursuant to its duty, DCF conducted an investigation the day after the alleged incident. The investigation found there were "some indicators" of excessive corporal punishment. The term "some indicators" advises DCF that some adverse incident has happened, but it could have been a one-time issue that may never happen again. In this case, the primary concern of DCF was that the alleged incident occurred in a child care facility. Flanders had an excessive history of prior reported incidents, which was taken into consideration by the investigators. Based on those findings, the safety of the child victim became a concern. DCF found, however, that Flanders' termination from employment was sufficient to alleviate further concern for the child. Flanders has been involved in child care for many years and considers it her occupation. Her pending application to operate a small child care facility is consistent with her work history. However, she has had an adverse incident resulting in some indicators of abusive behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying the application by Karen Flanders to operate a day care facility. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2006. COPIES FURNISHED: Karen Flanders 14924 Lady Victoria Boulevard Orlando, Florida 32826 Stacy N. Robinson Pierce, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1114 Orlando, Florida 32801 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether violations of Sections 402.305 and .310, Florida Statutes, and Section 65C-22.001, Florida Administrative Code, have been committed with regard to the care of children at the Petitioner's facility, such that its license should be revoked or other penalty imposed.
Findings Of Fact The Petitioner Gwendolyn Gobler was licensed to operate a daycare facility called Discovery Christian Learning Center, by the Department of Children and Family Services (Department) from August 13, 2001 through August 12, 2002. The Petitioner has a Bachelor's degree in early childhood education and has had a license for a family daycare home or center since sometime in 1998. Discovery Christian Learning Center, the subject facility, is located in St. Augustine, Florida at Number 260, State Road 16. State Road 16 is a busy four-lane highway in St. Augustine connecting Interstate 95 to downtown St. Augustine. On the day in question, January 17, 2002, an insurance agent Bill Matetzsck and his passenger, Ms. Lee Stec, were traveling on Highway 16 in the outer-left lane when they observed two children playing near the street on the outside of the Petitioner's facility. The children, a boy almost aged two and a girl aged two and one-half were playing on the sidewalk throwing leaves in the gutter. The little boy was observed to step into the highway while chasing leaves. Mr. Matetzsck stopped his car after observing the children and Ms. Stec retrieved them before they could be hit by a car and took them back into the facility. Ms. Stec became somewhat upset about the discovery of the children outside of the facility and immediately called the police, local television stations, the Florida Times Union Newspaper and waited for the police to arrive. Mr. Matetzsck observed that the double gate on the side of the property in the area of the backyard had a chain wrapped around it, but there was no lock on the chain. The Petitioner acknowledged to the law enforcement officer who investigated the incident that, although chained, the gate had not been properly fastened or secured. During that same time period Ms. Stec had also made a call to the Department of Children and Family Services reporting the incident. This triggered an inspection and investigation by the Department. Carmen Baselice is a Family Services Counselor assigned to St. John's County. The territory of her regulation and inspection of child care facilities includes the Discovery Christian Learning Center operated by the Petitioner. Ms. Baselice's duties include regulating and inspecting child care facilities and family daycare homes. Ms. Baselice initiated her investigation into the complaint by visiting the Discovery Christian Learning Center and discussing the complaint with Ms. Gobler. Ms. Gobler had noticed that the children were missing from her playground in the backyard and had just gone inside to see if they had gone back in the house at the time the children were being brought inside from the front of the house by Ms. Stec. Ms. Baselice observed that the front door of the facility was not properly fastened due to tape being placed around the doorknob locking mechanism. The door could only be locked by use of a deadbolt. Ms. Baselice felt at the time that the children may have exited the facility by that door. Ms. Gobler, however, stated that the only possible way that the children could have gotten out was by the gate which she acknowledged was not properly fastened. On January 17, 2002, Ms. Baselice received another complaint from a parent who was concerned that it was her child who had gotten out of the facility. The parent was concerned because her own child had gotten out of the facility by the front door in December 2001. Ms. Baselice reviewed the complaint with Ms. Gobler who confirmed that the child had gotten out of the facility by way of the front door by turning the deadbolt, but that she had apprehended the child while the child was still on the front porch and returned her to safety inside the house. On January 8, 2002, before the incident with the two children, Ms. Baselice conducted an annual renewal inspection on the facility. She observed an infant in a crib unattended and the facility "out-of-ratio" for more than thirty minutes. Out of ratio means that there was an insufficient number of staff members for the number of children being kept at the facility. On this occasion there were four children being kept, as well as the infant asleep in the crib in the infant room. Ms. Gobler was the only person present at the time of this inspection, on January 8, 2002. Thirty minutes later the second worker came on duty. The thirty-minute delay in being properly staffed was caused by that worker having a flat tire on her way to work. Ms. Gobler was attending to the toddlers in the larger room and the infant was asleep in the crib in the adjoining infant room, a separate room. However, it is also true that Ms. Gobler had the infant in plain sight from her station in the room with the four other children and could hear the infant through the open or sliding door. Through her testimony, and through Respondent's Exhibit two, in evidence, Ms. Baselice established that Ms. Gobler had a long history of incidents investigated and inspected by the Department and a substantial number of attendant violations. The incidents reported in Respondent's Exhibit two and in Ms. Baselice's testimony began prior to 1998 and there was a history of non-compliance which continued to the present time. During these years Ms. Gobler operated in disregard of the law in a number of instances, either by non- compliance with specific regulatory requirements concerning how her child care facility operated or was equipped, or without licensure in all instances. When the violations were cited she would often correct the immediate problem but later repeat the same type of violation. Many of the violations in her regulatory history are germane to child safety. The subject violations involving the children escaping form the home obviously are directly and dramatically involved with child safety. The little boy in question was about to get into the street and was barely missed by an oncoming car when Ms. Stec retrieved him. Those repetitive violations in the past are referenced in Respondent's Exhibit two and are incorporated herein by reference.
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 revoking the Petitioner's license. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. 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 3rd day of October, 2002. COPIES FURNISHED: Gwen Gobler, pro se Post Office Box 1122 Ponte Vedra, Florida 32004 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue At issue in this case is whether Petitioner's application to register as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: This case involves Petitioner's application to operate a registered family child care home. Petitioner had been registered as a family child care home from April 1989 to June 1992 and again from February 1995 to August 1998. The Department received Petitioner's most recent application on September 6, 2000. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care center involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home may care for no more than five preschool children from more than one unrelated family. Subsection 402.302(7), Florida Statutes. The application requires disclosure of "other family/household members." Petitioner's application identified David Barcelona as a household member and stated that his family relationship was "friend (roommate)." During her previous periods of registration, Petitioner had been the subject of numerous complaints to the Department. In May 1989, the Department notified Petitioner that she had been found to be caring for more than five preschool children. Petitioner acknowledged that she was operating above capacity, but assured the Department that the situation would be rectified by June 1, 1989. Nonetheless, complaints regarding the number of children at Petitioner's home persisted through at least June 1991. The Department also received several complaints concerning drug use in Petitioner's home. In September 1995, a complaint alleged that Petitioner and several other adults were seen smoking marijuana in the home. A complaint filed by a parent in February 1996 stated that the parent could smell marijuana on his children when he picked them up from Petitioner's home. A complaint from November 1996 stated that Petitioner was seen smoking marijuana in the presence of the children in her care. In each instance, the Department wrote a letter to Petitioner. The Department's letter of February 26, 1996, is representative and is quoted in relevant part: As a registered family day care home, you are not statutorily required to meet all the child care standards established in [then] Rule 10M-12 or 10M-10 of the Florida Administrative Code. In addition, Chapter 402.302-313 of the Florida Statutes does not provide the department with any statutory authority to regulate complaints of this nature within registered family day care homes. However, in the interest of safety and proper child care, we wanted to bring the complaint to your attention so that you might correct the issues as appropriate. Providing care for any child is very important. It is our hope that you are not engaging in any illegal or inappropriate activities which [sic] operating your child care business. During the Department's investigations of these complaints, Petitioner consistently denied that she used any illegal drugs. On August 10, 1998, the Department received a complaint that an unsupervised child was seen outside in the rain at Petitioner's house. On the same date, the Department received another complaint regarding Petitioner's live-in boyfriend, David Barcellona, and whether his presence rendered her home an unsafe environment for children. The complaint stated that Mr. Barcellona had not undergone background screening and had admitted to hitting one of Petitioner's own children. The complaint also stated that children reported witnessing Petitioner's use of marijuana and crack cocaine in the home. These complaints were resolved when Petitioner ceased providing child care. She sold her house and voluntarily relinquished her registration. A child protective services investigation was also commenced on August 10, 1998, by investigator Daniel McLean. His investigation confirmed that Mr. Barcellona had hit Petitioner's ten-year-old son "upside the head with an open hand" because the boy had called him a "faggot." Petitioner had given Mr. Barcellona permission to physically discipline her children. The children expressed a fear of living in the home with Mr. Barcellona. No observable injuries were found on either Petitioner's son or her eight-year-old daughter. Mr. McLean testified that Petitioner told him at least twice that she had smoked marijuana for 15 years. Mr. McLean attempted several times to obtain a drug screen from Petitioner without success. At length, Mr. McLean informed Petitioner that the Department would begin legal proceedings if Petitioner did not voluntarily surrender custody of her children to their natural father. On August 13, 1998, Petitioner signed the papers giving custody of the children to their natural father. She testified that "I picked the drugs over my children at that time." The evidence admitted at hearing established that, despite her denials, Petitioner had been a long-time user of marijuana. By her own admission, Petitioner was addicted to crack cocaine for a period of at least three months in 1998. Petitioner's sister, Lisa Lucius, estimated Petitioner's crack usage lasted for six months. Mr. McLean testified that Petitioner told him she had been using crack for seven months. At some point in 1999, Petitioner shoplifted a pair of tennis shoes, was arrested, and placed on one year's probation for petit theft. Her probation was conditioned upon her entering a 28-day live-in drug rehabilitation and counseling program at the Ruth Cooper Center in Fort Myers. Petitioner successfully completed this program. Another condition of her probation was her attendance twice weekly at Alcoholics Anonymous meetings. She complied with this condition. Finally, Petitioner's probation was conditioned upon providing random urinalysis drug tests. She complied with this condition, and her tests were all drug free. Petitioner testified that she has been drug free since completing the program at the Ruth Cooper Center. Since the conclusion of her probation in 2000, she has discontinued attendance at Alcoholics Anonymous or Narcotics Anonymous meetings. She testified that she no longer has a drug problem. In the registration application at issue in this proceeding, Petitioner listed David Barcellona as a family/household member. Both Petitioner and Mr. Barcellona were required to undergo Level 2 background screening as set forth in Subsection 435.04(1), Florida Statutes. Petitioner successfully passed the background screening and was so notified by a letter from the Department dated October 24, 2000. The letter informed Petitioner that she had passed the screening, but expressly cautioned: "Receipt of this letter does not automatically qualify you for the employment, specific position or license you may be seeking. That determination will be made [by] either an employer or licensing department." The background screening disclosed potentially disqualifying offenses for David Barcellona. As of November 6, 2000, the Department had sent Mr. Barcellona a letter offering him the opportunity to provide documentation as to the disposition of those offenses, but Mr. Barcellona had not responded. On October 31, 2000, Petitioner phoned Sarah Jarabek of the Department to inquire as to the status of her application. Ms. Jarabek told Petitioner that the Department had concerns about her history of substance abuse and about the presence of Mr. Barcellona in the home. They made an appointment to meet in Ms. Jarabek's office on November 6, 2000. On November 6, 2000, Petitioner and Ms. Lucius met with Ms. Jarabek, Nancy Starr, and Patricia Richardson of the Department. Petitioner provided evidence of the drug abuse treatment she had received while on probation. She also produced documentation that she had completed the required 30- hour Family Child Care Training Course, documentation of her church attendance and completion of a single parenting program at her church, and documentation that she had taken a technical training course for legal secretaries. Ms. Jarabek testified that she accepted all of Petitioner's representations at the meeting regarding her treatment and other matters, but that concerns remained because of Petitioner's history of denying her drug use and because the lonely, pressure-filled business of family day care might prove a poor rehabilitative environment. Ms. Starr testified that she believed more time should pass for Petitioner to demonstrate that she was not subject to a relapse. Petitioner had only been off probation since March 2000, and had yet to demonstrate her stability when her activities were not being constantly monitored. Ms. Starr was also concerned because Petitioner was not currently involved in any organized program to maintain her recovery and because Petitioner had denied using drugs when the complaints were filed in 1996 through 1998. At the November 6 meeting, the Department's representatives also raised the question of Mr. Barcellona's continued presence in the house. Petitioner told them that she had broken up with Mr. Barcellona and ejected him from her house, because she thought he was smoking crack cocaine. She told them that Mr. Barcellona had continued to harass her. He would bang on her door late at night, screaming, "I love you." He would spray his cologne outside her house, to "leave his scent." Petitioner and her children were "terrified" of him, and Petitioner was in the process of obtaining a restraining order against him. Ms. Jarabek believed Petitioner's statement that Mr. Barcellona was no longer living in the house, but remained concerned for the safety of children who would be staying at Petitioner's home, given Mr. Barcellona's erratic behavior. By letter dated November 14, 2000, David Barcellona was notified that he was ineligible for a position subject to background screening. Mr. Barcellona had not responded to the prior agency letter offering him the opportunity to provide documentation regarding the disposition of the disqualifying offenses. As the applicant for registration, Petitioner received a copy of the letter to Mr. Barcellona. By letter dated December 1, 2000, the Department notified Petitioner that her application to operate a registered family child care home had been denied. The letter cited the following as grounds for the denial: the history of at least 13 complaints regarding the operation of the home during Petitioner's previous registration periods, including six complaints related to Petitioner's use of marijuana and/or cocaine in the presence of her own or other people's children; the unreported presence of Mr. Barcellona in the home during Petitioner's previous registration periods; and the lack of sufficient time and evidence to demonstrate that Petitioner was capable of providing a safe and healthy environment for children in her care. Petitioner contended that the Department waived its ability to hold her prior complaints against her now because it repeatedly allowed her to re-register during the relevant years despite those complaints. Ms. Jarabek testified that this apparent anomaly was due to a change in Department policy since Petitioner was last registered. The Department previously took the position that it was required to ignore drug usage in a registered family day care home, because Section 402.313, Florida Statutes, did not expressly provide authority to deny or revoke a registration on that ground. Ms. Jarabek testified that the Department's current interpretation of its statutory authority to supervise the provision of child care permits it to consider drug usage in the home. The December 1 letter took note of the "positive changes" in Petitioner's life, but also noted that these changes were too recent to overcome the concerns about Petitioner's past behavior and future stability.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for registration of her family day care home. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001. COPIES FURNISHED: Richard D. Lakeman, Esquire Law Office of Richard D. Lakeman, P.A. Post Office Box 101580 Cape Coral, Florida 33910 Eugenie G. Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906 Virginia A. Daire, 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
The Issue The issue in the case is whether the registration of Thorpe Lindsay's family day care home should be revoked.
Findings Of Fact The Department is responsible for the registration and supervision of family day care homes, pursuant to Section 402.313, Florida Statutes (2007). Respondent, Thorpe Lindsey, has been registered to operate a family day care home at 2306 Savoy Drive, Orlando, Florida, since December 18, 2006. 3. On June 27, 2007; July 13, 2007; and July 26, 2007, Respondent allowed an unscreened and unapproved substitute, Sheneka Henderson, to be alone with and supervise children in the family day care home. Respondent was not present in the home on at least two of these occasions. On all three occasions, Respondent appeared after the Department's protective investigator or child care licensing supervisor noted his absence and the presence of Ms. Henderson as the caregiver.2 On July 13, 2007, Respondent was cautioned in person about the repercussions of allowing unscreened personnel to supervise children. On September 14, 2007, the Department issued an Administrative Complaint against Respondent, seeking to impose a civil penalty in the amount of $500.00 for the three instances of using an unscreened and unapproved substitute caregiver. Respondent refused to accept service of the Department's certified letter. The copy of the Administrative Complaint sent by regular U.S. Mail was not returned to the Department, and Respondent never sought a hearing or otherwise contested the allegations of the Administrative Complaint. Aside from the problem of unscreened personnel, Respondent also had a recurring problem of caring for a number of children greatly in excess of the ratios allowed by statute in his family day care home. Under any circumstances, a family day care home may provide care for no more than ten children. See § 402.302(7), Florida Statutes (2007). On June 27, 2007, the Department sent a certified letter to Respondent noting that on the previous day, the Department had received a report that Respondent was caring for between 30 and 40 children. The letter cautioned Respondent that he must immediately reduce enrollment and submit a written plan to the Department by July 10, 2007, identifying the names and birth dates of the children for whom Respondent would continue to provide care, as well as the names and birth dates of the children whom Respondent eliminated from his roster. Respondent never provided the required documentation to the Department. The Early Learning Coalition of Orange County is a public/private partnership established to ensure that children enter school ready to learn. In coordination with the Department, the Early Learning Coalition provides health and safety inspections for anyone receiving school readiness funding. Because Respondent received such funding, Eric Allen, an inspector for the Early Learning Coalition, made regular visits to the family day care home. On July 6, 2007, Mr. Allen made a routine visit to Respondent's home and found several violations, including a ratio violation, the presence of unscreened volunteers caring for children, chemicals under kitchen and bathroom sinks without door locks on the cabinets, and uncapped electrical outlets. On July 9, 2007, the Early Learning Coalition sent a letter to Respondent outlining the violations and requiring their correction pending a re-inspection of the family day care home. On July 20, 2007, Mr. Allen conducted a routine visit to Respondent's home and again found the home to be out of ratio. On July 26, 2007, the Early Learning Coalition sent a letter, signed by Donna J. Williams, director of quality services, to Respondent that stated the following, in relevant part: This letter will clear up any confusion as to the number of children you are legally allowed to care for. As a family home provider, six (6) is the maximum number of children under the age of five you are allowed to have in care at one time. If an infant is present, the maximum number of children allowable at one time is five (5). I am enclosing the state ratio chart so you may be clear on the number and age of children you are legally allowed to have in your care at one time. Since this falls under our Non-compliance Policy, you are hereby on notice that if there is any other incident where you are found in non-compliance with any Level I violation, the parents of school readiness funded children will be contacted and given the opportunity to transfer as you will be ineligible to receive school readiness funds for a period of one year. On September 7, 2007, at approximately 3:45 p.m., Mr. Allen again visited Respondent's registered family day care home. Mr. Allen found a note on the front door stating, "We are on a field trip," with contact information for parents at the bottom. Mr. Allen noted that the contact numbers on the note did not match the contact information on file at the Early Learning Coalition. He also noted that all of the windows of the house were covered with blinds or cardboard. Mr. Allen testified that he had made several prior attempts to visit the home in recent days, but that on each occasion was met with a note claiming the children were out on a "field trip." He was about to walk away from the house when he heard a baby crying inside. He rang the doorbell and knocked on the door but received no response. He called out to whomever was inside the house, "This is Eric from the Early Learning Coalition. I can hear a baby crying. You need to open the door or you are violating your provider agreement and you are in danger of being de-funded." There was still no response from inside the house. Mr. Allen walked around to the back door. He knocked on the window of the rear childcare area and repeated his warning. After several minutes, a car pulled up to the home. A woman got out of the car and approached the front door. Mr. Allen asked if she was there to pick up a child, and she answered affirmatively. She rang the doorbell but no one answered. Mr. Allen offered to call the contact number, but the woman just turned and drove away. Mr. Allen called the Early Learning Coalition's office and asked the administrative assistant to verify and call the contact number for Respondent's home. When the assistant called the number, a woman who identified herself as Respondent's sister answered and stated that the children were out on a field trip. Mr. Allen then called the contact number and asked Respondent's sister where the children were. She stated they were on a field trip to Pizza Hut. Mr. Allen told her he could hear a baby crying inside and that if the door was not opened he would call the police. Respondent's sister hung up the phone. Just as Mr. Allen's phone conversation concluded, approximately 25 minutes after he first arrived at the house, the woman in the car returned. As the woman walked up to the front door, the door was opened by Toshiba Lindsey, another of Respondent's sisters, who was holding a baby she said was her son. Mr. Allen showed Ms. Lindsey his identification and asked her why he had been left outside trying to get someone to open the door for nearly a half hour. Ms. Lindsey claimed to have been sleeping and not to have heard the knocking. Mr. Allen entered the home and started down the hallway, but Ms. Lindsey forbade him from entering one of the rooms. Mr. Allen could hear a child crying inside the room. He demanded to know whose child was behind the door. Ms. Lindsey denied there was anyone in the room. For several minutes, Mr. Allen attempted to convince Ms. Lindsey to open the door, but she continued to say that she could not open it. Mr. Allen told her to call Respondent, who was not in the house. Mr. Allen spoke to Respondent and told him that he would call the police if Ms. Lindsey did not open the door. Respondent hung up on him. Mr. Allen called 911 and requested an officer to come to the house and open the door. A moment later, the door to the room opened and another woman, Sheneka Henderson, emerged with 13 children. Neither Ms. Lindsey nor Ms. Henderson had been background screened or trained to act as caregivers. Mr. Allen recorded the names and ages of the children, then left the home. Respondent never showed up at the house while Mr. Allen was there. On September 10, 2007, the Early Learning Coalition sent Respondent a letter notifying him that he would be ineligible to receive school readiness funds for a period of one year, based on Respondent's repeated violations of mandatory state ratio requirements.
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 revoking the registration of Thorpe Lindsey to operate a family day care home. DONE AND ENTERED this 10th day of April, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 10th day of April, 2008.
