The Issue Whether the Department of Children and Family Services (the "Department") had just cause to revoke the license of Petitioner to operate a family day care home.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: From April 15, 1987, through March 31, 2001, Marcia Edwards operated a registered family day care home at 15475 Chloe Circle, Fort Myers, Florida 33908. 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 home 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 must comply with the limits on the number of children under care, as set forth in Subsection 402.302(7), Florida Statutes. Ms. Edwards had been reminded of the requirement for background screening of household members at least once, via letter dated February 12, 1993. Nonetheless, the Department received two complaints in December 1994, regarding the presence of an unidentified person in the home. One complaint noted that an "unidentified male houseguest was eating and drinking the children's food." The second complaint noted that Ms. Edwards was out of town and left the children in the care of her mother and "a guy named Wayne." On January 4, 1995, the Department sent Ms. Edwards a letter informing her of the complaints and reminding her that she could not leave children with persons who had not undergone background screening. The letter noted that neither Ms. Edwards' mother nor "Wayne" had undergone background screening. The adult male referenced in the complaints was Wayne Brueckman, who was residing in the Edwards home. On February 6, 1995, in compliance with the Department's letter, Ms. Edwards submitted the necessary information to initiate background screening on Mr. Brueckman, listed as a "Household Member" and "Sitter/Relief." Mr. Brueckman's background screening revealed no disqualifying information. Ms. Edwards was reminded of the statutory capacity limitations in person and in writing at least 11 times between September 1987 and June 1999. On at least five occasions, Ms. Edwards responded that she understood the capacity limitations. Nonetheless, Department employees personally observed violations of the capacity limitations on at least five separate occasions. By letter dated July 7, 1999, the Department gave Ms. Edwards an administrative warning that she would be subject to imposition of a fine if she continued to operate in violation of the statutory capacity limitations. On August 13, 1996, an abuse report was received by the Department that Wayne Brueckman sexually abused D.S., a three- year-old boy, in the Edwards home. The child had told his mother that Mr. Brueckman kissed his penis, put a "white thing" in his anus, and spanked him when he defecated in his pants. However, the child would not repeat his allegations to protective investigator Mae Cook, and an examining physician could find no physical evidence of sexual abuse. Mr. Brueckman denied the allegations. Ms. Edwards was interviewed by Ms. Cook concerning the August 13, 1996, complaint. Ms. Edwards denied any inappropriate activity and vouched for Mr. Brueckman as her friend of 20 years. Though she closed the file because she did not have sufficient evidence to confirm the allegations, Ms. Cook strongly suggested that children staying overnight not be allowed to sleep in Mr. Brueckman's room and that he not be left alone at any time with children, to avoid any repetition of such allegations. A repeated citation in the violation notices from this point forward was that Ms. Edwards would leave Mr. Brueckman alone with the children in her care for extended periods of time. Concerns regarding Mr. Brueckman were also raised during an investigation of another sexual abuse report received by the Department on November 18, 1996. This complaint involved Z.A., a three-year-old boy in care at the family day care home. The child told a story of some adult in the Edwards home rubbing his genitals, but his limited verbal skills made it unclear whether a man or woman did the touching. Wayne Brueckman and Marcia Edwards were both interviewed by the protective investigator and both denied any inappropriate activity. Again, there was no physical evidence to confirm the allegations. On February 5, 2001, the Department received an abuse report that W.W., a 19-month-old boy in care at the Edwards home, had bruises along his spine and arms, two large bumps on his head, and a patch of hair loss on the top of his head. Medical examinations by the Child Protection Team and the child's pediatrician determined the injuries were significant, inflicted and the result of physical abuse. The abuse report was called in by J.W., the divorced father of the child. W.W. lived with his father and his older sister in the home of J.W.'s mother. J.W.'s teenaged nephew also lived in the house. W.W. did not see his biological mother. J.W. worked as a chef, and left W.W. and his older sister at the Edwards home on evenings that he worked. The medical determination of the approximate time of injury indicated the injuries occurred either at the child's residence or the Edwards family day care home. When at his residence, W.W. was in his father's care. J.W. denied inflicting the injuries on his son, and discounted the possibility that anyone else living in his household might have done so. J.W. was certain that his son's injuries were inflicted at the Edwards home. W.W.'s older sister told investigators that "bad boys" at the Edwards home had inflicted the injuries on the boy. J.W. readily consented to the CAT Scan, eye examination, and clotting factor test recommended by the pediatrician. The father expressed concern about the supervision provided by the family day care home. He recalled several times in the past that when he came to pick up his children at night, he could look in the window of the Edwards home and see Mr. Brueckman sleeping. It required lengthy knocking and ringing of the doorbell to finally rouse Mr. Brueckman or anyone else in the home. Wayne Brueckman and Marcia Edwards were interviewed by the Protective Investigator. Both denied any inappropriate activity or failure to supervise. However, based upon the medical evidence, and multiple interviews including questioning of the children in attendance at the family day care home, the report was closed as verified. The Protective Investigator concluded that the child was injured by other children at the family day care home. The case determination found that Marcia Edwards and Wayne Brueckman inadequately supervised and neglected W.W. On February 22, 2001, while the W.W. case was being investigated, Ms. Edwards applied to renew her family day care home registration. Based upon the W.W. investigation, the Department issued a denial of registration on May 29, 2002. Ms. Edwards requested a formal administrative hearing to contest the denial of registration. The Department forwarded the matter to the Division of Administrative Hearings, where it was assigned DOAH Case No. 01-2840. A hearing was scheduled for September 19, 2001, in Fort Myers, Florida, before Judge Daniel S. Manry. Counsel for Ms. Edwards requested a continuance due to a scheduling conflict. Judge Manry granted the continuance and rescheduled the hearing for October 19, 2001. On October 12, 2001, the Department filed a motion to relinquish jurisdiction, accompanied by a settlement agreement between the parties. On October 15, 2001, Judge Manry entered an order closing the file in DOAH Case No. 01-2840. The settlement agreement required licensure of the family day care home, which would obligate the family day care home to comply with increased regulatory standards. One such standard prohibits the owner from working out of the home during the hours the family day care is operating. Rule 65C- 20.009(1)(a), Florida Administrative Code. In the settlement agreement, Ms. Edwards affirmatively recognized her on-going obligation to comply with all requirements of the Florida Statutes and Administrative Code applicable to family day care homes. The settlement agreement also provided that the Edwards home would receive a consultation by Child Care of Southwest Florida ("CCSWF"), a private, non-profit regional organization that, among many other services, provides training and technical assistance to home-based child care providers. This consultation would be at the Department's expense. CCSWF's consultant would assess the home's compliance with licensing standards and make suggestions as to implementation of best practices. The Department's experience has been that CCSWF's consultation, technical assistance, and training have proven successful in improving marginal child care providers. On December 17, 2001, Lisa Bledsoe, the infant/toddler coordinator for CCSWF, visited the Edwards home for the required consultation. Ms. Bledsoe rated the home based on the Family Day Care Rating Scale ("FDCRS"), an objective tool developed by the National Network for Child Care for the assessment of infant/toddler group care. The FDCRS consists of 32 items which assess the quality of center-based child care for children up to 30 months of age. This 32-item scale covers six categories: Space and Furnishings for Care and Learning, Basic Care, Language and Reasoning, Learning Activities, Social Development, and Adult Needs. Each item can be ranked from 1 to 7. A ranking of 1 describes care that does not even meet custodial care needs while a ranking of 7 describes excellent, high- quality personalized care. The Edwards family day care home received a cumulative score of 2.375 on the FDCRS. Deficits included a sterile and child-unfriendly interior, lack of interesting and colorful pictures and no pictures at child's eye level, insufficient opportunity for outdoor play, minimum hand washing requirements not met, diapers not checked regularly, failure to conduct regular fire drills, dim lighting, and insufficient activities to encourage language development. Ms. Bledsoe contacted Ms. Edwards to notify her the completed rating would be mailed to her. Ms. Bledsoe offered follow-up visits, technical assistance, and training classes for caregivers. Ms. Edwards rejected the offer of further assistance. While acknowledging that her recommendations were not mandatory, Ms. Bledsoe could recall no other day care provider rejecting additional help from CCSWF, which is provided free of charge. The need for Ms. Edwards to provide supervision at the family day care home and to be present was an important issue in the settlement of DOAH Case No. 01-2840. On October 10, 2001, prior to the signing of the settlement agreement, Ellen Blake, a licensing counselor for the Department, conducted a pre- licensing orientation and review at the Edwards home. Ms. Blake and Ms. Edwards had a lengthy discussion about supervision requirements. Ms. Edwards told Ms. Blake that she would be absent only when taking and picking her children up from school. She and Mr. Brueckman were sharing the care of the children. After obtaining licensure, Ms. Edwards appeared to be providing closer supervision of Mr. Brueckman. Ms. Edwards was present for six of the seven licensing inspections the Department performed between October 10, 2001, through June 18, 2002. However, testimony from Ms. Edwards' own witnesses established Ms. Edwards was readily available in the evenings to do extensive hours of volunteer work. Additionally, she transported her own minor children to after-school and weekend activities and was always available to transport other people's children to and from school and outside activities. Further, Ms. Edwards operated a photography business that often involved out-of-home shoots, including a large annual undertaking at St. Xavier School. Mr. Brueckman was left alone with children when Ms. Edwards was out of the home. Ms. Edwards' witnesses also established that she provides child care 24 hours a day, 7 days per week, which is a service not readily available in the community. The home is consistently well utilized, especially during the expanded hours. Mr. Brueckman was providing evening and night supervision, and slept in the same room as the children under his care. The Edwards have three minor children who often have multiple friends spend the night for sleep-overs. Neither the Edwards children nor their friends were restricted from access to the designated child care room. On June 13, 2002, the Department received an abuse report stating that Wayne Brueckman sexually abused D.S., a two- and a half-year-old boy in care at the Edwards family day care home. On June 20, 2002, during an interview with the Lee County Sheriff's Office, Mr. Brueckman admitted to inappropriately touching the child's penis and having the child touch his penis during diaper changes. Mr. Brueckman has been charged with two counts of felony lewd and lascivious molestation and is awaiting trial. Commission of sexual battery on a two-and-a-half-year- old child is a serious violation of the obligation of a child care provider to supervise a child entrusted to their care and for which they are receiving payment. Molestation of a child creates a great likelihood of actual or potential harm. Mr. Brueckman lived at the Edwards home and received only room and board for the continuous care he provided for the children of paying clients, as well as Ms. Edwards' three minor children and their numerous friends. Mr. Brueckman admitted to having had no dating or sexual relationships with an adult for over ten years. He had no private time and felt overwhelmed by his work situation. On June 20, 2002, the Department cited Ms. Edwards for a deficiency in supervision as she failed to meet the needs of children in her care due to Wayne Brueckman's molestation of D.S. The operator of a family day care home is ultimately responsible for the supervision of the children in care. Rule 65C-20.009(3)(a), Florida Administrative Code. Upon learning of Mr. Brueckman's actions, Ms. Edwards immediately evicted him from her house. To meet the requirement that she have a trained substitute caregiver in the home, Ms. Edwards designated her husband as her substitute in July 2002. As of the date of hearing, Mr. Edwards had not completed the required training. During the nine licensing inspections the Department performed between October 10, 2001 through July 1, 2002, various violations of minimum licensing standards were found, including: inadequate lighting in the playroom; failure to keep up-to-date immunization records; failure to keep on file the required enrollment information; ants on the kitchen table; home, furnishings, toys and equipment not kept clean and in good repair; incomplete first aid supplies; and hazardous materials (alcoholic beverages and protein shake mix) within a child's reach. Ms. Edwards corrected all these violations. The Department never sought to fine Ms. Edwards for any of the cited violations. By notice, dated August 14, 2002, the Department revoked Ms. Edwards' license based on the reasons delineated in the letter including past history, licensing inspections, the arrest of Mr. Brueckman for lewd and lascivious molestation of a child at the family day care home, and the ongoing failure to have a qualified substitute.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking the license of Marcia Edwards to operate a family day care home. DONE AND ENTERED this 5th day of February, 2003, 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 5th day of February, 2003.
The Issue Whether Petitioner's application for licensure as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Linda Richmond, formerly Linda Cook, applied for a license to operate a family day care at her residence. In connection with Petitioner's licensure application, dated December 17, 2001, the Department conducted a background screening of Petitioner, which included a review of the following: local and state criminal records; Florida Department of Law Enforcement reports; FBI records; records of the Florida Hot Line Information System; employment history; and affidavits of good moral character. Based on information obtained from the Florida Hot Line Information System, the Department denied Petitioner's application to operate a family day care home. According to the Notice of Denial dated June 12, 2002: [Y]our registration to operate a Family Day Care Home is being denied at this time due to the following: (1) Background screening revealed a prior incident of neglect of your children and inadequate supervision. The facts underlying the report demonstrates [sic] an inability to ensure the safety of children in your care to the level necessary to be registered as a Family Day Care Home. The Notice of Denial does not specify which background screening records the Department relied on in reaching its decision to deny Petitioner's application. However, in light of the evidence presented by the Department, the denial was apparently based on information included in a 1990 Abuse Report and/or a 1995 Abuse Report. The 1990 Abuse Report noted that Petitioner admitted using crack cocaine and having people come to her home for the purpose of using crack, but denied that she used drugs in her children's presence. Also, the 1990 Abuse Report indicated that one of Petitioner's minor children had been fondled by a man who was at the home for several days and that Petitioner "reported being in the home at the time of the alleged incident." Furthermore, according to the 1990 Abuse Report, the house in which Petitioner, her then husband, and her children lived was not clean and did not have electricity. The 1990 Abuse Report concluded that Petitioner had neglected her children. Based on the investigation, on or about October 25, 1990, the report was closed as "confirmed for conditions hazardous to health and all other maltreatments are indicated." The 1990 Abuse Report noted that "due to the condition of the home and the crack usage in the home by the parents," the children were placed in the home of their maternal grandmother. Finally, as to the disposition of the case and the services to be provided, the report stated that the risk and severity of harm to the children was low "in the grandparental home," that protective service supervision was needed, and that the case was referred to protective services for ongoing supervision. Petitioner admits that at the time of the 1990 Abuse Report and investigation related thereto, she was addicted to crack cocaine. However, Petitioner's credible testimony was that she never used crack or any illegal drug in her children's presence. Moreover, at the time one of her minor children was fondled by a man temporarily staying at the house in which the children lived with their father, Petitioner was estranged from her then husband, was not staying with him and the children, and was not aware of that incident until some time after the incident occurred. Notwithstanding the findings and conclusions in the 1990 Abuse Report, there is no evidence that Petitioner neglected or failed to supervise her children, as alleged by the Department. In late 1995 or early 1996, a second abuse report, the 1995 Abuse Report, was generated following an investigation into allegations that the maternal grandfather of Petitioner's children was physically abusing them. As a result of an investigation, the 1995 Abuse Report found that the maternal grandfather, with whom the Petitioner's children were living, had used excessive corporal punishment on them. The report was closed with a finding of verified maltreatment of the children by their maternal grandfather. During the time period covered by the 1995 Abuse Report and the maltreatment of Petitioner's children by their maternal grandfather, the children were not living with Petitioner. They were living with and in the custody of their maternal grandparents, having been placed with them by the State as a result of the findings and conclusions in the 1990 Abuse Report. As accurately noted in the 1995 Abuse Report, Petitioner's role at the time covered by the report was that of "parent not in home." Nothing in the 1995 Abuse Report indicates that Petitioner neglected or failed to supervise her children. Rather, it was Petitioner who called the Abuse Hot Line on December 19, 1995, after she observed her father hit one of her children so hard that the child fell to the ground. This incident occurred December 19, 1995, while Petitioner was at her parents' house to visit her children and give them Christmas gifts. The reason Petitioner called the Abuse Hot Line to report the December 19, 1995, incident described in paragraph 12 was that she cared about her children and perceived her father's action to be physical abuse of one of her children. Although Petitioner reported the December 19, 1995, incident the day it occurred, no one came out to investigate the matter. The following day, Petitioner reported the incident to her counselor at the Center for Drug Free Living, who then telephoned the Abuse Hot Line. The Notice of Denial fails to state any facts from either the 1990 Abuse Report or the 1995 Abuse Report which establish that Petitioner neglected or failed to adequately supervise her children. Moreover, neither the 1990 Abuse Report nor the 1995 Abuse Report supports the Department's allegations that Petitioner neglected or failed to supervise her children. Finally, the Department presented no evidence to support its allegations or to demonstrate Petitioner's "inability to ensure the safety of children in [her] care to the level necessary to be registered as a Family Day Care Home." Petitioner successfully refuted the Department's allegations that she neglected and failed to adequately supervise her children, even though she admitted that in 1990, she was addicted to crack cocaine. However, this admission by Petitioner, standing alone, does not establish the Department's allegations. After the 1990 Abuse Report was issued and prior to issuance of the 1995 Abuse Report, Petitioner faced her addiction and took action to turn her life around so that she could regain custody of her children. As part of Petitioner's rehabilitative process, she successfully completed a drug treatment program as evidenced by the fact that she has been "drug free" since September 15, 1995, or for more than seven years. In addition to the drug treatment program, Petitioner also participated in and completed a parenting class. After completing the drug treatment program and the parenting class, Petitioner regained custody of and was reunited with her children. In March 1996, Petitioner was awarded "supervised" custody of her children. Six months later, Petitioner was awarded permanent custody of her children. There is no indication that Petitioner neglected, abused, mistreated, or failed to supervise her children either prior to or after March 1996, when she regained custody of the children. Since successfully completing the drug treatment program and parenting class and regaining custody of her children, Petitioner has had a stable work history, has remarried, and has become an active member of a church in her community. From 1996 through 1999, Petitioner was employed as a housekeeper by Disney World. After leaving Disney World, Petitioner was employed at Sophie's Kids Learning Center, as a child care provider or "teacher" of toddlers. Petitioner is currently employed at Sophie's Kids Learning Center and has been employed there since 1999, except for a six-month period when she took leave to care for her daughter and grandchild. In letters of support, Petitioner is described as a good employee, one of the center's best instructors who is doing "excellent work with children of all ages." Petitioner is an active member of Salem Gospel Baptist Church and has been for the past two years. Petitioner attends church services regularly, is a member of the church choir, and teaches a children's Sunday School Class. Letters of support from the pastor of the church and a church member indicate that Petitioner is a committed member of the church who works with the children in the church. These letters also state that Petitioner has gained and enjoys the respect of the parents in the church as well as those not in the church.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for licensure to operate a family day care home. DONE AND ENTERED this 13th day of December, 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 13th day of December, 2002. COPIES FURNISHED: Richard B. Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Linda Richmond 25 West 14th Street Apopka, Florida 32703 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in 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 Whether Petitioner, the holder of a family day care home registration, has violated Respondent's minimum standards for child care providers by failing to directly supervise an infant in her care on March 22, 2006, and whether her registration should be revoked, pursuant to Section 402.310(1), Florida Statutes.1
Findings Of Fact Petitioner, Jacqueline Bizzell, has been operating a child care facility in her home, at the same location, since 1992. She has been a registered family day care home with Respondent since January 30, 2001. As a part of her application to be a registered family day care home provider, Petitioner sent Respondent verification that she completed the required training for child care providers, which includes knowledge of Respondent's rules and regulations in the area governing child care. On January 26, 2006, Petitioner was informed that her family day care home was again registered for one year, effective January 30, 2006. In the letter, Petitioner was informed that she must maintain her registration in accordance with Section 402.313, Florida Statutes (2005). On March 24, 2006, Respondent received an allegation of neglect or abuse that took place at Petitioner's family day care home on March 22, 2006. Rivers Lewis (Lewis) was a child protective investigator for Respondent on the date of the allegation. He conducted an investigation of the allegation and completed a report. As a part of the investigation, Lewis spoke directly with Petitioner who stated that on March 22, 2006, the child was the only child in her care the day of the incident, and that she left him sleeping on her bed and went into the hallway in front of another room to do laundry or to do something else. Petitioner told Lewis that as soon as she heard the child cry, she stepped back into the room to find that he had fallen from the bed. Petitioner said, first, that the child had fallen off the bed, but later stated that the child had been on the side of the bed and was hanging onto the covers. Lewis submitted his investigative report on April 27, 2006, concluding that the case could be closed with verified indicators of "inadequate supervision" by Petitioner. Shortly after Lewis submitted his report, Ivette Garcia, Child Care Licensing Administrator, received a copy and reviewed it with another worker. She sent Petitioner a letter, dated May 10, 2006, stating that: "The purpose of this letter is to advise you that effective immediately, your family day care home is closed and that your registration is no longer valid." The closure was based upon the incident that occurred on March 22, 2006, wherein the investigative report, submitted by Lewis, confirmed indicators of inadequate supervision. No further investigation or other action was conducted by the child care licensing section in DCF's District 7 before the letter was sent. Although Garcia testified at the hearing that inadequate supervision of a child is a Class I violation, the highest violation, Petitioner was not specifically advised of such classification in the May 10, 2006, letter, nor was a finding made of an immediate serious danger to the health, safety, or welfare of the children who are enrolled in Petitioner's home. Respondent's District 7 Child Care Licensing office did not go to Petitioner's home to inspect or verify the report. It had no further communication with Petitioner after said date. Petitioner was not charged with causing injury to a child under her supervision. Garcia testified that due to the limitations of the registration statute (§ 402.313, Fla. Stat.), Respondent had only one option to deal with a Class I violation: immediately close the home and invalidate the registration. Petitioner's family day care home operated under the name: Hi Granny Day Care. She had only one child in her home on March 22, 2006, the eight-month-old boy, Markel. The child had been fussy and throwing up all day. At about 4:00 p.m., she put the child in the middle of her bed when he finally went to sleep. The bed was by the door. She stepped across the hall to do some chores and while standing at the door, in front of the playroom for about 14 or 15 minutes. When she heard a noise, she immediately stepped back into the room. She admits that she said to the investigator that he fell out of the bed, but that he really did not fall to the floor, but slid off of the bed and was dangling from the bed when she came back into the room; and a blanket broke his fall. She provided a handwritten diagram of her home as it appeared on the date of the incident. Petitioner had been taking care of Sherina Clemons' eight-month-old son, Markel, for over two months when the incident occurred. On March 22, 2006, Petitioner called her between 4:45 p.m. and 5:00 p.m. asking Clemons to not be mad at her. Petitioner told her that the child had been asleep when she placed him on her bed, but that when she walked out of the room, he must have awakened and fallen off of the bed landing on a pallet of covers. According to Latoya Marion, Children's Home Society, the Petitioner's reputation in the community was very good as a child care provider. Latisha Rashawn Bell has known Petitioner for about three years and Petitioner cared for her daughter in 2006. She came to Petitioner's home on March 22, 2006, later in the evening, and knocked on the door. Petitioner came to the door, holding the child, who was whining or crying. Petitioner told her that the child had fallen out of the bed, but had not landed on the floor. Chakera Angelette Faniel is a child care provider, who is not employed by Petitioner. Petitioner cared for Ms. Faniel's daughter for the first three years of her daughter's life, but no longer does. She has known Petitioner for about five years and knows her to be a caring and loving person. Petitioner has a very good reputation in the community as a child care provider. The clear and convincing evidence demonstrates that late in the afternoon of March 22, 2006, Petitioner placed a sleeping eight-month-old boy in the middle of her king-size bed, which was located in her bedroom near the door. Petitioner stepped across the hall and did some chores, while standing in front of the playroom for about 14 or 15 minutes. Although she was only three or four feet from the child, Petitioner could not see the child from where she was standing. When she heard the child cry, she immediately stepped back into the room and found the child lying on some covers on the floor. She picked the child up, who did not appear to be injured. Shortly thereafter, Petitioner contacted the child's parents and reported the incident to them. The child's mother arrived later and took the child home. The evidence is clear and convincing that Petitioner failed to provide direct supervision of the child while he was napping, in the late afternoon, on March 22, 2006. The evidence is clear and convincing that Petitioner is a long-term child care provider, who obviously gives compassionate care to the children in her care. There have been no prior reported incidents of neglect or abuse filed against Petitioner, nor were prior deficiencies listed. Petitioner enjoys a good reputation as a child care provider in her community. Except for the incident on March 22, 2006, no evidence was presented that Petitioner presented an immediate serious danger to the public health, safety, or welfare to the children who are enrolled in her family day care home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Secretary of the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of a single violation of the provisions of Florida Administration Code Rule 65C-22.001(5)(a) and (b) on March 22, 2006; Imposing an administrative fine of $100; and Immediately reinstating Petitioner's family day care home registration for a period of 264 days and permitting Petitioner the opportunity to submit an application for renewal of her family day care home registration at the appropriate time. DONE AND ENTERED this 13th day of April, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 13th day of April, 2007.
The Issue The issue in this case is whether Respondents violated provisions of Chapter 402, Florida Statutes,1 and Florida Administrative Code Chapter 65C-20, and, if so, what penalty should be imposed.
Findings Of Fact Respondent Traceann Handy owns and operates Traceann Handy Family Day Care Home, a child care facility licensed by the Department. On May 26, 2009, the facility had been inspected by the Department and found to be in compliance with the rules of operation. Due to some missing documentation (CPR and first aid certificates), the facility was issued a Provisional License. As of the date the final hearing in this matter was concluded, the documentation had been submitted, and the facility had a valid license to operate.3 The Department is responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by Handy. It is the Department's responsibility to ensure that all such facilities are safe and secure for the protection of children utilizing the facility. On Friday, June 5, 2009, the Department received a complaint concerning Handy's facility. The complaint alleged that two older children were asked to supervise a younger child without adult supervision and that transportation of the children had been provided without prior authorization. Based upon these complaints and in accordance with its rules, the Department commenced an investigation of the facility. Investigator Anderson (who was on call for the weekend) went to the facility the next day, Saturday, June 6, 2009. She knocked on the front door (although the entrance to the child care facility portion of the home was located on the side of the house). No one answered her knock, but a young man later came out of the house and advised Anderson that the facility was closed and that Handy was not home.4 Anderson called the investigator assigned to the case (Dayna Prevost) to report her findings. While Anderson was making the telephone call, the same young man came out to her car, banged on the car window and loudly repeated that Handy was not home. Anderson smelled an odor which she believed was marijuana while talking with the young man. (The young man was later identified as Handy's adult son, Trauquece Handy.) Anderson then left the premises. The investigation was recommenced on Monday, June 8, 2009. On that date, Investigators Wolbach and Prevost went to the Handy home and knocked on the side door of the home. When there was no answer to the knock, the investigators went to the front door and knocked. Again there was no answer, but they could hear what sounded like children inside the house. The investigators called Handy (who was not at home) and were told by Handy that she would have someone inside the house open the door. Despite the phone call and promise from Handy, no one opened the door, so the investigators called the police for assistance. When the police arrived, a man opened the front door, but the investigators were granted only limited access to the house. An adult female was seen inside the house, along with two small children. The female was questioned and said that she was a housekeeper and that the children inside the home at that time were her children. Upon receiving that information, the investigators again left the premises. On the next day, Tuesday, June 9, 2009, a team of investigators went back to the facility. This time Handy was present, and the team was allowed into the house. Handy's husband was also present at that time. While the team was inspecting the facility, Handy's son came into the house and went directly upstairs. The team reviewed Handy's records concerning attendance at the facility by various children. Handy was interviewed, and due to the previous suspicion of marijuana usage at the home, asked to provide a urine specimen for the purpose of conducting a drug screening test. (There was considerable discussion at final hearing as to how the urine specimen was taken, but that is not an issue in the present proceeding and will not be discussed further.) At one point during the investigative review at the home, a team member approached the inside stairwell and pushed open the gate located at the bottom of the stairs. The gate had been placed there by Handy in response to prior concerns by the Department about children having access to the upstairs portion of the house. The gate was apparently unlatched, although there were no children present at that time near the stairwell. (There was one child present in the home, but that child was in another part of the house.) As the investigator started up the stairs, Handy's husband said that Handy would likely not appreciate them going into her private quarters. As the investigator continued up the stairs, Handy came into the room and voiced her opposition to anyone going upstairs. Handy had been previously advised by the Department that if a gate was in place to keep children from going upstairs, it would be unnecessary for the Department to inspect that area during every regular inspection. It is unclear from the testimony whether Handy misunderstood the Department or whether the Department was only talking about its annual licensure inspection. No matter, Handy told the investigator that she did not want the investigator to go upstairs. The investigator took that remark as a direct order that she not go upstairs, so she did not do so. Instead, the Department sought injunctive relief in Circuit Court to gain access to the upstairs portion of the house. A hearing on the Department's motion was held the next day, Wednesday, June 10, 2009. Handy received notice of the hearing less than an hour before the hearing was scheduled to commence. She called the Circuit Court Judge's assistant to seek a continuance, but was told that the hearing must proceed. The court gave Handy the option of appearing via telephone, if she so desired. Handy wanted to attend the hearing in person, so she went to the courthouse. There was one child at the day care facility at that time. Handy could not find her approved substitute on such short notice, so she called the child's parent (who was Handy's cousin) and asked if it would be okay for Handy's husband to watch the child while Handy attended the hearing. The parent approved that arrangement. The Circuit Court entered an Order requiring Handy to allow the Department "a one[-]time inspection . . . of the private part of [the] home." Based upon that Order, the Department sent a team of investigators back to the facility on June 10, 2009, to complete its inspection. Upon completion of its investigation, the Department issued the Administrative Complaint relevant to this proceeding. The Administrative Complaint addresses two alleged violations by Handy: First, that Handy refused to allow the Department access to the entire home during the inspection. Second, that Handy allowed a person who was not currently screened to supervise a child in her care. An administrative fine of five hundred dollars ($500.00) was proposed for each of the two violations.5 Handy does not believe she instructed the investigator not to go upstairs during the June 9, 2009, inspection. She remembers only telling them she did not want them to go upstairs, that it was unnecessary, and that her understanding from prior discussions was that the upstairs would not be inspected. The investigator believes she was specifically and forcefully told not to go up the stairs. In either case, it is clear a court order was obtained to gain access. (At the hearing in Circuit Court, Handy had reiterated that she did not want the investigators to go upstairs.) The gate in question was put in place to prevent children from having access to the upstairs portion of the house. However, the gate was either broken or unlatched (the testimony on this issue is not clear) when there was a child present in the house. Handy's husband did not have a valid background screening in place on June 10, 2009, that would allow him to act as a provider of child care services in the facility. He had been previously screened, but had not had his background screening updated when it expired in June 2008. He had not been re-screened because he and Handy were separated, and he did not intend to be at her house to supervise children any longer. The two are still married, but he only visits the house to do maintenance and repairs as needed. It is clear that Handy's husband was watching the child only due to the exigent circumstances surrounding the court hearing and the unavailability of Handy's approved substitute. Further, the child's parent was made aware of the fact and had acquiesced to this arrangement. Nonetheless, Handy's husband was not technically qualified to watch children attending the child care center at that time.
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 imposing an administrative fine of $200 against Respondent, Traceann Handy. It is further RECOMMENDED that Handy be ordered to attend remedial classes on the operation and management of a child care facility. DONE AND ENTERED this 13th day of January, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 13th day of January, 2010.
The Issue The issue is whether Petitioner proved by clear and convincing evidence allegations contained in its Proposed Revocation of Respondent's Family Day Care License No. 907 dated January 21, 2004.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, exhibits admitted into evidence, stipulations and arguments of the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003), and the entire record compiled herein, the following relevant and material facts are determined: The Parties Petitioner is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Petitioner routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the home’s operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on family day care homes that have a provisional license rather than a standard license. Petitioner also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time without notice. Respondent is the provider and licensed owner of a licensed family day care home located at 965 Waldon Avenue in Bartow, Florida (hereinafter “Respondent’s facility” or “the facility”). Respondent’s facility consists of a family residence with a connecting door to the converted garage. The number of children Respondent may have in “care” each day depends upon: (1) the ages of the children in care and (2) the number of qualified caregivers available to supervise the children in various age groups. This restrictive requirement, referred to as the “child care ratio,” is mandated by statute, the violation of which creates a dangerous situation and a dangerous condition for the safety and well-being of the children in care. The Inspection and violations On March 12, 2003, Respondent’s facility was inspected by Gloria Mathews (Ms. Mathews) and Tricia Step (Ms. Step), and several areas of non-compliance were identified during this inspection. The following non-compliant items were noted on Petitioner’s Family Child Care Home Inspection Checklist: unsafe storage of materials dangerous to children was observed in the bathroom drawers, litter was observed in areas where children play, equipment or plumbing not in working order (item was a baby crib and toilet with tissue the children had not flushed), no operable smoke detector or fire extinguisher, the surface of the diaper changing area was not impermeable, no record of fire drills for the past six months, and an up-to-date and age-appropriate immunization record was missing for one child. Two other non-compliant items, Ipecac not labeled with poison control phone number and seven pre-school age children ages 12 months and older were in the facility. Respondent may provide care to only six children in this age group. The extra child was taken home, and this item was corrected at the time of inspection. On December 18, 2003, Respondent’s facility was inspected by Ms. Mathews and Ms. Step, and the following non- compliant items were noted on the Family Child Care Home Complaint: Respondent had 18 children in the facility three of which were infants. Respondent was not present at the time of inspection, and the substitute caregiver was in charge. Petitioner could not determine whether screening of the substitute caregiver, Elizabeth Ricks, had been completed. Ms. Mathews and Ms. Step remained at Respondent’s facility until the parents picked up their children. James Hayes (Mr. Hayes), Respondent’s husband, took one child home. On January 21, 2004, Petitioner informed Respondent by certified mail of the proposed revocation of her family day care license initially issued in March 2002. Petitioner alleged that the decision to revoke Respondent’s license to operate a family child care facility was based on her failure to ensure that the children' substitute caregivers were adequately screened and because Respondent's home was over capacity and out of ratio. The notice stated: On December 18, 2003, there were eighteen (18) children in your day care home. Three (3) of the children were under the age of twelve (12) months. With 3 infants in your care, your license permits you to care for a maximum of six (6) children. The number of children in your home far exceeds the number of children allowed. During an inspection on March 12, 2003, seven (7) preschool age children ages 12 months and older were observed in your home. You are permitted six (6) children in this age group. This violates section 402.302(7), F.S. You also failed to insure [sic] that the substitute care persons in your home caring for children were properly screened in accordance with section 402.313, Florida Statutes. At the final hearing, Petitioner’s inspectors, Ms. Mathews and Ms. Step testified that when they arrived at Respondent’s facility on December 18, 2003, Mr. Hayes was in the facility. Based upon the testimony of the inspectors, Petitioner argued in its post-hearing submittal that Mr. Hayes had not been screened and that he had a criminal record. Petitioner presented no evidence to substantiate the claim that Mr. Hayes had a criminal record. The testimony and argument regarding this issue is hearsay without corroboration and disregarded. Respondent's Evidence Respondent testified that she was out of town on December 18, 2003, and that her substitute caregiver had begun training classes, but apparently had not completed the course and, therefore, had no background check performed. According to Respondent, non-compliant items identified by Petitioner’s inspectors were corrected as soon thereafter as possible. Respondent testified that she was confused regarding the infant and pre-school child-to-caregiver ratio because it was never explained to her in the manner testified to by both Ms. Mathews and Ms. Step. Continuing, Respondent testified that her substitute caregiver(s) had completed the required training and are now qualified to assist her. She contended that submission of the names and certification of training completion had been provided to Petitioner and that she was awaiting Petitioner's response. This testimony was not disputed by Petitioner. Respondent, to counter allegations that her facility and personnel presented a significant or potential risk of harm to the children, provided four testimonial letters from parents who were regular patrons of her facility. Each of the four parents expressed confidence in the assurance of safety and the ready necessity of Respondent’s child care services during the work week and often times during the weekend. Respondent presented photographs of her facility evidencing the facility’s configuration, carpeting, equipment, beds, and other furniture. Respondent testified that Mr. Hayes does not enter the facility during the time children are present. To ensure separation between the family’s living area and the attached rooms used for child care, Respondent installed a door between the room leading from the family’s living area to the anteroom and the garage. Respondent corrected every non-compliant item identified by Petitioner during their two inspections of her facility. Many, if not all, corrections were made when identified; i.e., the clogged toilet was flushed. The non- compliant items, individually or collectively, were minor and did not directly create an unsafe situation for the children in care. These efforts demonstrated a sincere intent and desire to comply with Petitioner's rules and regulations and to continue to provide a safe and necessary family day care home for working parents in her immediate neighborhood. Violations Proven by Petitioner Petitioner proved by clear and convincing evidence that on March 12, 2003, there were seven preschool children ages 12 months and older in the facility, Family Day Care License No. 907 permits a maximum of six children in care, an amount in violation of Subsection 402.302(7)(c), Florida Statutes (2003). Petitioner proved by clear and convincing evidence that on December 18, 2003, there were 18 children in Respondent's facility in violation of Subsection 402.302(7)(b), Florida Statutes (2003).
Recommendation Based upon the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating Subsection 402.302(7), Florida Statutes (2003), twice. Finding Petitioner not guilty of violating Section 402.313(3), Florida Statutes (2003). Setting aside the revocation of Respondent's family day care home license. Suspending Respondent's family day care home license until such time that the following conditions are met to the satisfaction of the Department: Respondent's substitute caregivers are identified, trained, qualified, and approved by Petitioner. Respondent demonstrates an understanding of the required child-to-child caregiver ratios. Respondent has trained each of her substitute caregivers on the child-to-child caregiver ratios and provides written instructions to be followed by her caregivers each day when the children in care in a specific age group are out of ratio to the number of caregivers present. That all conditions hereinabove are completed to the satisfaction of Petitioner as the condition for lifting the suspension. DONE AND ENTERED this 17th 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 17th day of September, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Theresa Hayes Arielle's Angel Care 965 Waldon Avenue Bartow, Florida 33830 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner, Sabra Portwood, is entitled to register her home as a family day care home under the provisions of Chapters 402 and 435, Florida Statutes.
Findings Of Fact On August 10, 2000, Petitioner was married to Randy Shoaff. She had two children, twins, by him and is currently pregnant with another of his children. Although estranged at present, they remain married. Petitioner is in the preliminary stages of dissolving the marriage and intends to complete the dissolution process. Petitioner and Mr. Shoaff have had a rocky relationship. On October 4, 2000, less than two months into their marriage, Mr. Shoaff struck Petitioner several times in the head from behind. She was pregnant at the time of the attack. The incident was reported to law enforcement. On March 12, 2001, Petitioner swore out a Petition for Injunction for Protection Against Domestic Violence, naming her husband as Respondent. The essential facts to which she swore and testified to at hearing were as follows: On February 23, 2001, at 705 W. Wilcox the Respondent Randolph Shoaff told me that the only reason I was still alive was because I was pregnant and that I have 3 other children. He said that he wanted to shoot me & then kill himself. Because of his actions before I have been afraid of him on 3 or 4 different occasions, and I would just be quiet & not say anything & wait for him to go to work. On Oct. 4th (there should be a police report) there was a dispute between us & he started hitting me in the head repeatedly when I was 3 months pregnant & had only been home for 3 hrs from the doctor because I was bleeding during pregnancy. I am afraid because I asked his coworker if his (Randy's) gun was under the counter & he said it wasn't there. As a direct result of Petitioner's request for a domestic violence injunction, the Third Circuit Court issued a Temporary Injunction. Subsequently, the injunction was conditionally dissolved. However, Mr. Shoaff was ordered to have no personal contact with Sabra Portwood at her home. A third Order was subsequently entered in order to facilitate visitation with his children, allowing non-hostile contact between the parties. Mr. Shoaff does not live with Petitioner. However, Petitioner and Mr. Shoaf are presently married. Therefore, Mr. Shoaf is currently a member of Petitioner's family and is required to undergo background screening for Petitioner's registration. Mr. Shoaff did not pass the background screening because of the injunction based on domestic violence entered against him. No exemption from disqualification was sought. Because of the failed background screening, Petitioner, who was the victim of domestic violence and took steps to protect herself from that violence, was denied registration based on the actions of her estranged husband.
Recommendation Based upon 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 Petitioner's request to register her home as a family day care home. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of May, 2002. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949 Sabra Portwood 140 Regina Road Perry, Florida 32348 John Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent's registration to operate a family day care home should be revoked.
Findings Of Fact At all times material to the allegations of this case, Respondent, Kathy Stone, d/b/a Stone Family Day Care, was registered by the Department to operate a day care facility in her home located at 272 Southwest Fairchild Avenue, Port St. Lucie, Florida. As part of the registration for such day care home, Respondent was required to complete forms on which Respondent was to identify all members of the household residing at the registered location. Specifically, Respondent was to disclose any person over twelve years of age residing at the home. None of the registration forms completed by Respondent disclosed that an individual named Kevin Schaffer resided at the registered home. On more than one occasion law enforcement authorities were called to Respondent's residence in order to intervene in domestic disputes between Respondent and an individual named Kevin Schaffer. On all such occasions, Mr. Schaffer listed his residence as that of the Respondent's day care home. Mr. Schaffer is a convicted felon. Respondent failed to disclose that Mr. Schaffer was a resident over the age of twelve years residing at the registered day care facility.
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 Respondent's registration as a home day care facility. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 29th day of May, 1998. COPIES FURNISHED: 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 Sydney L. Schwartz, Esquire Department of Children and Family Services 1436-C Old Dixie Highway Vero Beach, Florida 32960 Katherine Stone, pro se 272 Southwest Fairchild Avenue Port St. Lucie, Florida 34984
The Issue Whether the Department of Children and Family Services ("Department") properly revoked the Petitioner's, Elena Highland's, family child care home registration because her husband, a member of the household, has a verified abuse of report of sexual abuse of a child.
Findings Of Fact The Petitioner, Elena Highland, is registered to operate a family day care home, located at her home. She has been so registered since March 1, 2002. W.H., the husband of Mrs. Highland, lives with her in their home where she operates the family day care home. W.H. also works outside the home. W.H. is the designated substitute for the family day care home. In March 1992, the Union County Sheriff's Department investigated the circumstances of an attempted suicide and sexual battery of a 15-year-old female victim in Case No. 92-46- CFA. During the investigation W.H. admitted to John Dempsey that he had sexual relations with the girl on one occasion, but it was consensual. W.H. was 21 years old at the time. W.H. was later arrested. The Department also investigated the case and verified Abuse Report No. 92-035063, against W.H. for the March 1992, sexual molestation of the 15 year-old victim for the following reasons: W.H. admitted to Deputy Dempsey that he had consensual sexual relations with the girl on one occasion. The victim was not dating W.H., was not "sweet" on him, and he was dating her aunt. The victim denied that the sex was consensual. The victim's suicide note and subsequent statements indicated that her suicide attempt was because W.H. had been forcing her to have sex over a three-year period. The victim's statements were consistent throughout the investigation, and she was severely depressed because of the abuse. The victim remained hospitalized for two months. The victim's mother had found her daughter's dresser blocking the door on one occasion, which was consistent with the girl's statement. The victim told her mother her brothers were bothering her. Another household member had seen W.H. supposedly ironing in the dark at the home on one occasion. W.H. stayed at the victim's home and at her grandmother's home on occasion. His family lived in the same projects complex as the victim's family. The prosecution of W.H. was dropped because the victim was to fragile and did not want to testify. Sandy Looney, day care licensing supervisor, testified that the Department's policy is never to register or license and/or revoke the registration or license of family day care homes with a household member who has a verified abuse report for sexual abuse in order to protect the children. Ms. Looney stated that Mrs. Highland's receipt of a family day care registration in March 2002 was a Department error. W.H. denied at hearing that he ever had sex with the victim and that he ever stated to Deputy Dempsey that he had consensual sex with the girl.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint be dismissed. DONE AND ENTERED this 21st day of April, 2003, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2003. COPIES FURNISHED: Elena Highland 1823 Southwest Judy Lane Lake City, Florida 32025 Lucy Goddard-Teel, Esquire Department of Children and Family Services Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
