Findings Of Fact Respondent John T. Hagler held Florida teacher's certificate No. 241870 covering the areas of biology, English and general science, valid through June 30, 1991. He worked as a substitute teacher for the Santa Rosa County School Board during the 1989-90 and 1990-91 school years. Afflicted with Downs syndrome, respondent's thirteen-year-old foster son, E. C., also had pronounced behavioral problems. Slender but not weak, he made sexual advances toward teachers and others, overturned desks, destroyed property, emerged from the school bathroom naked, lay down on a table and refused to move, threw things, engaged in self abuse, and was generally aggressive toward others, both verbally and physically, according to Catherine Irwin, a behavior specialist who saw him weekly. It was more than E. C.'s mother, an alcoholic, could cope with on her own, so she voluntarily relinquished custody of him. Under contract to the Department of Health and Rehabilitative Services (HRS), Lakeview Center, Inc. in Pensacola trained respondent John Thomas Hagler and his wife in crisis prevention intervention and otherwise helped them secure licenses as foster parents, before HRS placed E. C. in their care, in March of 1990. According to the behavior specialist who monitored E. C. during his time with the Haglers, his undesirable behavior decreased. She reported seeing "laughing moments, tender moments and structure" in the foster home Mr. and Mrs. Hagler provided for E. C. Respondent and his wife Kathleen "Kitty" Hagler deal in antique glass, selling "depression ware" and other glass objects at flea markets. They took E. C. with them on several of these occasions, including on Saturday, July 7, 1990, when they went to the T & W Flea Market in Pensacola and set up their display at Table 210, under a big oak tree. Irene Rathbone, who left before all the excitement, saw E. C. at the flea market that day sitting at a TV table calmly eating a hot dog. Later E. C. had moved to the front seat of the Haglers' Ford pickup, driver's side. Without warning, he lunged for Mrs. Hagler, grabbing her crotch and a breast, or so she told Mr. Hagler afterwards. By the time Mr. Hagler, who heard her scream and came running to her assistance, reached her, she had pushed E. C. to the ground and was fending him off with her leg. E. C. was seated on the ground with his back against the truck, holding on to Mrs. Hagler's leg. Respondent leaned down, slipped his arms under E. C.'s from behind, grabbed his own wrist, lifted and dragged E. C. into an unshaded clearing a few feet away, and told him to stay there. Concerned citizen(s) notified the Escambia County Sheriff's office. Deputies rescued E. C. from his "time out" after about 25 minutes, and arrested Mr. and Mrs. Hagler. What they mistook for blood around Eric's mouth turned out to be cherry-flavored Kool-Aid (of which E. C. had drunk about a half gallon that day.) At the time of the arrest, the temperature was about 95 or 96 degrees F., but E. C. was not dehydrated or sunburnt. In the Circuit Court for Escambia County, an unsigned, amended information was filed alleging eight counts against both Mr. and Mrs. Hagler, who retained Gary Porch, Esquire, to assist in their defense. As the trial approached, the State offered to drop the charges it had laid against Mrs. Hagler. At the hearing in the present case, Mr. Porch testified that he advised Mr. Hagler his chances of acquittal were better than 50-50. Even though the State did not condition its offer not to prosecute Mrs. Hagler on Mr. Hagler's cooperation, Mr. Hagler felt the prosecutor might go forward against her if he did not cooperate, so he pleaded nolo contendere to count four, which alleges that he deprived E. C. "of necessary food or shelter or inflicted physical injury to E. C. by failing to provide water or shade to the child during excessive summer heat, in violation of Section 827.04(2), Florida Statutes." On April 17, 1990, Judge Collier adjudicated John Thomas Hagler guilty of count four, "negligent child abuse," Petitioner's Exhibit No. 1, and placed him on six months' probation, "on condition [that he] pay $75.00 court cost[s], and have no contact with similar type children, or be a foster parent." Id. Escambia County school officials first learned of events at the flea market from the Pensacola News Journal which published an account on July 9, 1990. Dr. Charles Boyd removed his name from the roster of substitute school teachers. The Escambia County School Board will not employ teachers convicted criminally of child abuse.
Recommendation It is, accordingly, RECOMMENDED: That petitioner suspend respondent's teacher's certificate for five days. DONE and ENTERED this 16th day of September, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1992. COPIES FURNISHED: Honorable Betty Castor Commission of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Margaret E. O'Sullivan 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 John T. Hagler 101 San Carlos Avenue Gulf Breeze, FL 32561
The Issue The issue is whether Respondent should have granted Petitioner a license to operate a family day care home.
Findings Of Fact In January 1992, Petitioner operated a foster home for dependent children. The foster home was licensed by Respondent's predecessor, the Department of Health and Rehabilitative Services (hereinafter referred to as Respondent). In January 1992, Respondent received a report that Petitioner and her husband, Jim Shell, had meted out bizarre and excessive punishments to the children in their foster home. The report also alleged that Petitioner tied the younger foster children into their cribs at night. This report resulted in an investigation by Respondent. In the year prior to the initiation of the investigation, the following children stayed in Petitioner's foster home: H.S. (d.o.b. 4-6-89); S.S. (d.o.b. 10-1-86); T.H. (d.o.b. 5-3-89); S.A.C. (d.o.b. 9-18-88); B.Y. (d.o.b. 11-2-80) and G.Y. (d.o.b. 12-2-82. H.S. and S.S. were sisters. S.A.C., B.Y. and G.Y. were siblings. T.H. was mentally retarded. Petitioner gave B.Y. more household duties in the home than would be expected as chores for a child of her age. These responsibilities included housecleaning, laundry and child care. Additionally, Petitioner often kept B.Y. home from school to do housework. To excuse B.Y.'s absence, Petitioner would write notes to the school, falsely stating that B.Y. had a doctor's note and stayed home sick. B.Y. and G.Y. were forced to do push-ups as punishment for minor infractions. Petitioner's testimony that the children were required to do these push-ups as a joke or game is not persuasive. Mr. Shell spanked G.Y. for mis-reciting spelling words. This occurred once a week. On one occasion, B.Y. observed Mr. Shell hit G.Y. on the buttocks with a two by four. On another occasion, Mr. Shell jerked S.A.C. off a trampoline in the backyard, spanked her and threw her onto the ground. As a result of this rough treatment, S.A.C.'s head struck a tree. Petitioner regularly tied H.S.; S.S.; T.H.; and S.A.C. into their cribs at night because they would get up after being put down for the night. When B.Y. untied the children, Petitioner told her that when the children are tied up, they are supposed to remain that way. There was great strife in the Shell household. Petitioner and her husband often argued. For example, on B.Y's first night in the home, Petitioner hit Mr. Shell on the head with a frying pan. It is contrary to Department policy to physically restrain or punish children in foster care. Foster parents learn this in the training they receive before receiving their foster care licenses. Notwithstanding Petitioner's claim that she is separated from her husband, they continue to live under one roof. The house they live in is on the same property where Petitioner intends to operate a family day care home. The foregoing facts, among others, were set forth in the Respondent's final investigative report, Florida Protective Services System Abuse Report Number 92-007405. On April 22, 1992, the Respondent sent a certified letter to Petitioner informing her that the investigative report had been classified as proposed confirmed, that she had the right to request that Respondent amend or expunge the report, and that any such request would be considered only if received by Respondent within sixty days of her receipt of the April 22, 1992 letter. The letter contained the following language: If you do nothing, your right to appeal the classification of the report will be completely barred. By not choosing [to ask for amendment or expungement], this report will automatically be classified as CONFIRMED. This means that you do not contest the department's right to maintain the report findings as stated, including your identification as a perpetrator. A perpetrator in a confirmed report of abuse, neglect or exploitation may be disqualified from working in certain positions of trust, including working with children, disabled adults or aged persons. (Emphasis supplied). Petitioner signed the acknowledgment of receipt for the April 22, 1992, letter on April 27, 1992. She never requested amendment or expungement of the investigative report. Because neither amendment nor expungement of the report was sought, the confirmed classification became final agency action sixty days after Petitioner's receipt of the letter on April 27, 1992. In other words, the agency action became final on June 26, 1992. No appeal was taken from this action.1 In 1994, the Agency for Health Care Administration granted Petitioner an exemption from disqualification from employment in positions covered by Section 400.512, Florida Statutes. That section discusses the requirement for employment screening, using level 1 standards, for home health agency personnel, persons referred for employment by nurse registries, and persons employed by sitter, companion, or homemaker services registered under Section 400.509, Florida Statutes. The record does not indicate whether the Agency for Health Care Administration conducted an evidentiary hearing before making its decision to grant Petitioner the exemption.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying the application of Petitioner Patricia Shell to operate a registered family day care home. DONE AND ENTERED this 2nd day of November, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998.
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
