The Issue Whether Petitioner should be granted an exemption from disqualification pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: In July 2001, Petitioner and his wife filed an application with the Department for a license to operate a family day care home. As part of the license application process, Petitioner was required to undergo background screening. The screening process was conducted in August 2001, and through that process, the Department obtained documents showing numerous criminal charges against by Petitioner between 1992 and 1997. The charges included driving under the influence, aggravated battery, aggravated assault with a firearm, armed robbery, and grand larceny. On August 30, 2001, the Department informed Petitioner that he was ineligible for employment in a position of trust working with children because of two disqualifying offenses identified through the background screening process, i.e., “larceny general – felony” and “robbery with firearm.” The letter identifies the date of the offenses as February 13, 1997. That date corresponds to the date that Petitioner was arrested on the charge of conspiracy to commit armed robbery. The case number for that offense was CR97-1756. On March 5, 1997, the State Attorney for the Ninth Judicial Circuit (State Attorney) filed a "No Information Notice" in case number CR97-1756 because the "case [was] not suitable for prosecution [because the] evidence submitted by [the] law enforcement agency [was] insufficient to prove guilt beyond a reasonable doubt." On March 11, 1997, while Petitioner was still in custody, the State Attorney filed charges against Petitioner in two separate cases. In the first case, number CR97-1735, Petitioner was charged with one count of robbery with a firearm (with a mask), three counts of aggravated assault with a firearm (with a mask), and one count of grand theft third degree. The offenses allegedly occurred on January 22, 1997. In the second case, number CR97-1736, Petitioner was charged with one count of attempted robbery with a firearm (with a mask). The offense allegedly occurred on January 31, 1997. On July 25, 1997, Petitioner accepted a plea bargain to resolve both of the cases. In case number CR97-1735, Petitioner pled guilty to grand theft, third degree. In case number CR97- 1736, Petitioner pled guilty to the lesser included offense of attempted robbery. In exchange, the State Attorney filed a nolle prosequi as to the other counts in case number CR97-1735, and Petitioner was sentenced to time served (163 days), placed on probation for two years, and assessed court costs and fines of approximately $800. The circumstances surrounding the offenses are not entirely clear. The credible evidence indicates that Petitioner and two of his friends (Jimmy Briggs and Jermane Dixson) fit the description of persons involved in a series of robberies in late January 1997, and an aborted robbery attempt on February 13, 1997. In this regard, the arrest report states: On 2-13-97 at 0329 hours, encountered three individuals, who had just plotted to commit an armed robbery. There was a sawed off shotgun, a toy gun, binoculars and several articles of clothing recovered from their vehicle. There was also another gun and a black shirt recovered from the residence of Jimmy Briggs. All three defendants confessed to planning the robbery and almost carrying it out, but got on the scene and changed their minds. Defendant Bryant Lee did confess to an armed robbery, that he said that he and defendant #2 (Briggs) and #3 (Dixson) participate [sic] in. [Lee] said it occurred at the Food Lion on Oakridge Rd. but would not be specific on the time, however indicated about three weeks ago. Defendant #2 (Briggs) and #3 (Lee) both confessed to plotting a robbery tonight and both wrote sworn statement [sic] to this effect. Despite his confession and his subsequent guilty pleas, Petitioner continues to deny any involvement in the crimes. He testified at the hearing that he was a victim of circumstances and poor judgment through his association with a bad crowd of friends. Petitioner further testified that he only agreed to the plea bargain because he wanted to get out of jail and go home to his son. In addition to the two cited disqualifying offenses, the record reflects that in December 1996, Petitioner pled nolo contendre and was adjudicated guilty of discharging a firearm in public, a misdemeanor. Petitioner was sentenced to time served (1 day) and assessed costs in the amount of $115. Petitioner was 24 years old at the time of his arrest in 1997. He is now 29 years old, and by all accounts, he has begun to turn his life around. He successfully completed his probation on July 24, 1999. He has not been charged with any criminal offenses since his 1997 arrest, and he has not even received a traffic citation. Petitioner has been married to his current wife for the past three years. They have two children together, and his wife's nine year-old daughter, Keyanna, also lives with them. Petitioner shares custody of his six year-old son from a previous relationship, and he is “getting current” on his child support obligation for that child. Petitioner is currently unemployed, but over the past five years he has worked as a chef in various restaurants. Petitioner testified that he is no longer working as a chef because he feels that his calling is to work with children in his community to steer them away from the path of criminal activity with which he was associated in his youth. The record includes glowing character references for Petitioner. One reference describes him as “a well rounded good hearted person, and one of the nicest people I know.” Another reference details Petitioner’s active participation in Keyanna’s school and states that he “has proven to be a model parent.” In November 2001, Petitioner successfully completed the 30-hour Family Child Care Training Course developed by the Department pursuant to Sections 402.305(2)(d), Florida Statutes, and Rule 65C-22.003, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 14th day of May, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 14th day of May, 2002. COPIES FURNISHED: Richard B. Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Bryant L. Lee 725 Grand Street Orlando, Florida 32805 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 204B 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 The issue is whether to deny Petitioner's application to renew her registration to operate a family day care home for the reasons stated in the Notice of Denial dated April 7, 2017.
Findings Of Fact The Department is the agency charged with the responsibility of licensing and registering family day care homes. See § 402.313, Fla. Stat. A family day care home is an "occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care." § 402.302(8), Fla. Stat. In order to operate a family day care home, the home must be licensed or registered by the Department. § 402.312(1), Fla. Stat. Unlike a licensed home, which is subject to more regulatory oversight, a registered home is not subject to periodic inspections, and the home is only required to undergo an annual evaluation during the registration process. § 402.313(1), Fla. Stat. Petitioner has operated a registered family day care home under the name of Little Bright Stars of Orlando at 4419 Fairlawn Drive, Orlando, for several years. Her most recent registration expired on March 9, 2017. This proceeding concerns Ms. Rosado's application for renewal of her registration. Unless a complete renewal application is filed, the application will be denied. § 402.313(1), Fla. Stat. This is because the Department has no authority to approve an incomplete application conditioned on an applicant filing the missing items at a later time. On March 9, 2017, Petitioner filed her renewal application with the Department. The application did not have the following required items: the application fee; a list of children in her care; a copy of the current immunization record for each child in her care; a copy of a training certificate, an in-service training record form 5268, or a continuing education unit certificate documenting ten clock hours of annual in- service training; a copy of the completed Registered Family Care Home Health and Safety Checklist; a copy of the tear-off section signed by the parent or legal guardian for each child in her care; a copy of the completed Child Abuse & Neglect Reporting Requirements form, signed and dated by the substitute(s); and a Level 2 Background Screening (livescan) for the operator, adult household members, and substitute(s). Petitioner was sent an email the following day informing her that she must file the incomplete and missing items. When the application was filed, Petitioner had several health-related issues, which required her to temporarily stop caring for children in her home. At that time, she was forced to make a choice between paying her medical expenses or the costs associated with renewing her application. She chose the former and submitted an incomplete application without a filing fee. Once the Notice of Denial was issued, Petitioner decided there was no reason to incur the costs associated with the missing items until she knew whether her application would be approved. As of the date of the hearing, the application was still incomplete. Pursuant to section 39.201(6), Florida Statutes, information in the Department's central abuse hotline and automated abuse information system may be used in its evaluation of a registration application. In May 2016, the Department received a complaint that Petitioner's home was "operating illegally," and she had forced a three-year-old child to clean up his urine when he had an accident. Petitioner characterizes the complaint as "false" and asserts it is based on erroneous information provided by a disgruntled parent who just removed her two children from the home. The Department's subsequent investigation belies this contention. In response to the complaint, a Child Institutional Investigation was conducted by a Department Licensing Counselor and a Child Protective Investigator on May 23, 2016. While investigating the urine incident, the investigators observed an unscreened person, Petitioner's 17-year-old daughter-in-law, living in the home and assisting with the care of the children. They also observed children sleeping on the floor with no mats, a leaking ceiling in the area where the children play, and paint cans that were accessible to the children. These conditions violate Florida Administrative Code Rule 65C-20.010, which establishes health and safety-related requirements for family day care homes. The Department closed the investigation on July 4, 2016, with verified findings of inadequate supervision and environmental hazards. See Dep't Ex. B. The report concluded that based on the confirmed findings, the safety assessment was "low," meaning the deficiencies did not present a high risk of injury to the children. Petitioner was notified by letter dated August 16, 2016, that the investigation was closed and she could request a copy of the report. Petitioner did not request a copy, and she saw the report for the first time when the Department pre-filed its exhibits. At hearing, most of Petitioner's evidence addressed the confirmed findings in the abuse report. She questioned why she was never offered a hearing to contest those findings, but there is no statutory requirement that the Department conduct a hearing to allow a perpetrator to challenge a confirmed report. In any event, Petitioner was allowed to respond to the findings in the report and to provide evidence to mitigate or contradict the observations of the investigators. Petitioner also questioned why a second inspection was never conducted by the Department to determine if the violations observed during the May 23 investigation had been corrected. An abuse investigation, however, differs from a licensing inspection, and there is no requirement that the Department conduct a second inspection to verify that abuse violations have been corrected. At hearing, Petitioner explained that her 17-year-old daughter-in-law was a temporary occupant of the home while her husband (Petitioner's son) was on active duty in the military. She admitted, however, that the daughter-in-law was not screened, which is a requirement for all persons having contact with the children in a family day care home. She also acknowledged that her husband resides in the home but is not screened. At hearing, Petitioner denied that she had forced a child to clean up his urine. She explained that the child had actually spilled water on the bathroom floor while washing his hands and she made the child clean up the spilled water. During the investigation on May 23, 2016, however, Petitioner admitted to the investigators that the child had continued to urinate on himself and she required the child to clean up the urine in the hope that he would not do this in the future. This is a Class 1 violation of rule 65C-20.010(6)(a), which prohibits humiliating a child as a disciplinary measure. It also meets the definition of "abuse," as defined in section 39.01(2), and "harm," as defined in section 39.01(30). For these reasons, the abuse report confirmed the finding of inadequate supervision. Petitioner further explained that on May 23, 2016, her husband was in the process of making repairs to the leaking roof and the damaged ceiling in the home, and these repairs were completed shortly after the investigation. After being told that sleeping mats were required for the children, Petitioner purchased ten mats for the children. Even so, these deficiencies were observed on May 23, 2016, are confirmed by testimony and photographs received in evidence, and are grounds to verify the abuse allegations. Two parents who have used Petitioner's services attested to her good character and the quality of care that their children receive. They urged that the home be allowed to remain open. Even if the abuse report is not considered, the Department would still be required to deny the application because it is incomplete. According to a Department witness, if a complete application had been filed, denial would still be required based on the confirmed abuse report.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying Petitioner's application to renew her family day care home registration. DONE AND ENTERED this 13th day of July, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 July, 2017. COPIES FURNISHED: Lisa M. Eilertsen, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Cynthia Rosado 4419 Fairlawn Drive Orlando, Florida 32809-4409 (eServed) Rebecca Falcon Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Brian Christopher Meola, Esquire Department of Children and Families. Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1707 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue in this case is whether Petitioner is entitled to issuance of a license to operate a family day care home, pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Rule 65C-20.008.
Findings Of Fact The Parties Petitioner, Shaguandra Ruffin Bullock, is an applicant for a family day care home license for the Ruffin Bullock Family Day Care Home. Respondent is the state agency responsible for licensing family day care homes in Florida. § 402.312(1), Fla. Stat. Events Giving Rise to this Proceeding A "family day care home" is an occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit. § 402.302(8), Fla. Stat. On or about July 6, 2017, Petitioner filed an application to operate a family day care home. Respondent reviewed the application and determined that it was incomplete, pending completion of the background screening required by sections 402.313(3), 402.305, and 402.3055.2/ On or about December 8, 2017, Respondent sent Petitioner a Notice of Intent to Deny Family Day Care Home Licensure ("NOI"), informing her of Respondent's intent to deny her application for a family day care home. The NOI stated, in pertinent part: On October 10, 2017, the Department received background clearance letters from child care personnel at Respondent's Family Day Care Home. Pursuant to Section 402.313(3), Florida Stat., childcare personnel in family day care homes are subject to applicable screening provisions. Pursuant to Section 402.302(15), Florida Stat. and Section 39.201(6), Florida Stat., The Department assessed the background of child care personnel at Respondent's family day care home including, but not limited to information from the central abuse hotline. The Department's assessment revealed the Respondent did not meet minimum standards for child care personnel upon screening which requires personnel to have good moral character pursuant to Section 402.305(2)(a), Florida Stat. The foregoing violates Rule 65C- 22.008(3), Fla. Admin. Code,[3/] Section 402.305(2)(a), Fla. Stat. and Section 402.313(3), Florida Stat. Based on the foregoing, Ruffin Bullock Family Day Care Home's, [sic] pending licensure application will be denied. Evidence Adduced at the Hearing At the final hearing, Respondent acknowledged that the background screening for Petitioner and her husband, Marlon Bullock, did not reveal that either had ever engaged in any of the offenses identified in section 435.04, Florida Statutes, which establishes the level 2 screening standards applicable to determining good moral character in this proceeding, pursuant to section 402.305(2)(a).4/ Rather, Respondent proposes to deny Petitioner's license application solely based on two confidential investigative summaries ("CIS reports") addressing incidents—— one involving Petitioner that occurred over 11 years ago, and one ostensibly involving Marlon Bullock that allegedly occurred almost 11 years ago. The CIS report for Intake No. 2007-310775-01 addresses an incident that occurred on or about January 16, 2007. Petitioner acknowledges that the incident addressed in the CIS report for Intake No. 2007-310775-01 occurred. Petitioner testified, credibly and persuasively, that at the time of the incident, Petitioner and her then-husband, Bernard L. Johnson, were going through a very difficult, emotionally-charged divorce. Petitioner went to Johnson's home to retrieve their minor children. An argument between her and Johnson ensued, and she threw a car jack through the back window of Johnson's vehicle. As a result of this incident, Petitioner was arrested. However, she was not prosecuted, and the charges against her were dropped. Respondent's witnesses, Ann Gleeson and Suzette Frazier, both acknowledged that they did not have any independent personal knowledge regarding the occurrence, or any aspects, of the incident reported in the CIS report for Intake No. 2007-310775-01. The other CIS report, for Intake No. 2007-455485-01, addresses an incident that ostensibly took place on September 7, 2007, involving Marlon Bullock, who is now Petitioner's husband. Petitioner was not married to Bullock at the time of the incident reported in the CIS report for Intake No. 2007- 455485-01. She credibly testified that she was completely unaware of the incident, and had no knowledge of any aspect of it, until she saw the CIS report in connection with this proceeding. Gleeson and Frazier both acknowledged that they did not have any independent knowledge regarding the occurrence, or any aspects, of the incident addressed in the CIS report for Intake No. 2007-455485-01.5/ The CIS reports and their contents are hearsay that does not fall within any exception to the hearsay rule.6/ The CIS reports and the information contained therein consist of summaries of statements made by third parties to the investigators who prepared the reports. The investigators did not have any personal knowledge about the matters addressed in the reports. It is well-established that hearsay evidence, while admissible in administrative proceedings, cannot form the sole basis of a finding of fact in such proceedings. § 120.57(1)(c), Fla. Stat. Accordingly, the CIS reports do not constitute competent, substantial, or persuasive evidence in this proceeding regarding the matters addressed in those reports. Thus, Petitioner's testimony constitutes the only competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-310775-01, and there is no competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-455485-01. Respondent has not adopted a rule defining the term "good moral character." Therefore, it is required to determine an applicant's "good moral character" based on the definition of that term in statute. As noted above, section 402.305(2)(a) provides that "good moral character" is determined "using the level 2 standards for screening set forth in" chapter 435. Ann Gleeson reviewed Petitioner's application for a family day care home license. She testified that based on her review of the CIS reports for Intake No. 2007-310775-01 and Intake No. 2007-455485-01, she "didn't feel comfortable" recommending approval of Petitioner's application for a family day care home license, and she recommended that the license be denied. As noted above, Gleeson did not have any personal knowledge of any of the matters in the CIS reports. She relied on the reports and their contents in making her recommendation to deny Petitioner's application. Suzette Frazier, Gleeson's supervisor, made the ultimate decision to deny Petitioner's application for the license. At the final hearing, Frazier testified that she determined that Petitioner's license should be denied based on the matters addressed in the CIS reports. Frazier testified that Petitioner's application raised particular concerns because of the two CIS reports, even though the CIS report for Marlon Bullock contained a "Findings – No Indicator" notation.7/ Frazier testified that it is Respondent's "policy" to deny an application for a family day care home license in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. According to Frazier, this policy applies even if the background screening shows that the applicant does not have a history involving any of the offenses listed in section 435.04. Further to this point, when Petitioner asked Frazier at the final hearing what she (Petitioner) could do to demonstrate that she has good moral character for purposes of obtaining her license, Frazier told her that although she could reapply, she would never qualify to get the license because of the CIS reports. Frazier testified that, in her view, the CIS reports contain information indicating that both Petitioner and Marlon Bullock have a "propensity" toward violent behavior. Webster's Collegiate Dictionary, 11th edition,8/ defines "propensity" as "a natural inclination or tendency." A "tendency" is "an inclination, bent, or predisposition to something." Id. An "inclination" is a "tendency toward a certain condition." Id. A "predisposition" is a "tendency to a condition or quality." Id. Frazier's view that Petitioner and Marlon Bullock have a "propensity" toward violent behavior is not supported by the competent, substantial, or persuasive evidence in the record. To the extent Frazier relies on the information contained in the CIS reports to conclude that Petitioner and Marlon Bullock have a "propensity" toward violent behavior, neither of these reports constitutes competent substantial evidence regarding the matters addressed therein. Furthermore, to the extent Petitioner acknowledges that she engaged in the conduct addressed in CIS report Intake No. 2007-310775-01, the competent, substantial, and persuasive evidence shows that this incident——which was an isolated event that occurred in the context of an extremely emotional and difficult personal event in Petitioner's life——simply does not establish that she has a "tendency" or "inclination" or "predisposition" toward violent behavior. To the contrary, the competent, persuasive evidence shows that this was a one-time event that happened over 11 years ago, that Petitioner did not have any instances of violent behavior before then, and that she has not had any instances of violent behavior since then. Far from showing a "propensity" toward violent behavior, the competent, persuasive evidence shows that Petitioner has exhibited an otherwise completely non-violent course of conduct throughout her life. Additionally, as previously noted, the evidence shows that neither Petitioner nor Marlon Bullock have any history involving any of the offenses listed in section 435.04. There is no competent substantial evidence in the record showing that Petitioner has engaged, during the past 11-plus years, in any criminal or other conduct that would present a danger to children, and there is no competent substantial evidence in the record establishing that Marlon Bullock has ever engaged in any criminal or other conduct that would present a danger to children. To the contrary, the competent substantial evidence establishes that Petitioner and Marlon Bullock are law-abiding citizens. Petitioner is employed as the manager of a department for a Wal-Mart store. Marlon Bullock is, and has worked for 23 years as, a chef. Petitioner credibly and persuasively testified that she is a Christian who attends, and actively participates in, activities with her church. Petitioner also credibly and persuasively testified that she has raised her four sons from her previous marriage to be law-abiding, upstanding citizens. None of them has ever been arrested or involved in any criminal behavior, and her three adult children are all gainfully employed. Petitioner posits, persuasively, that her children are testaments to the stability of her character and her ability to provide a safe, nurturing environment for the care of children. Frazier testified that Respondent's review of Petitioner's application showed that apart from the good moral character requirement, Petitioner's application met all other requirements to qualify for a family day care home license.9/ Findings of Ultimate Fact Although Respondent has adopted a rule, detailed in its Handbook, which establishes the background screening process for purposes of determining good moral character, Respondent has not adopted a rule defining "good moral character" or establishing, apart from the standards set forth in section 402.305(2)(a), any other substantive standards for determining "good moral character." Accordingly, pursuant to the plain language of section 402.305(2)(a), the level 2 screening standards set forth in section 435.04 are the standards that pertain in this proceeding to determine good moral character. Pursuant to the foregoing findings of fact, and based on the competent, substantial, and persuasive evidence in the record, it is found, as a matter of ultimate fact, that Petitioner and Marlon Bullock are of good moral character. Conversely, the competent, substantial, and persuasive evidence in the record does not support a determination that Petitioner and Marlon Bullock do not have good moral character. As noted above, Respondent determined, in its review of Petitioner's application, that other than the good moral character requirement, Petitioner met all other statutory and rule requirements for a family day care home license. Because it is determined, in this de novo proceeding under section 120.57(1), that Petitioner and Marlon Bullock meet the good moral character requirement, Petitioner is entitled to issuance of a family day care home license pursuant to sections 402.305(2)(a), 402.312, and 402.313 and rule 65C-20.008. Finally, it is noted that Respondent has not adopted as a rule pursuant to section 120.54(1)(a), its "policy" of denying applications for family day care home licenses in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. Accordingly, pursuant to section 120.57(1)(e)1., Respondent cannot rely on or apply this "policy" to deny Petitioner's application for a family day care home license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's license for a family day care home. DONE AND ENTERED this 12th day of April, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 12th day of April, 2018.
The Issue The issue for determination is whether Respondent properly denied Petitioner's application for renewal of her family child care home license.
Findings Of Fact Respondent, the Department of Children and Family Services (Department), issued a family child care home license to Vernetta Rossi (Petitioner) on January 15, 2001. The license was effective for a year, and automatically expired one year later. The maximum number of children for which Petitioner was licensed was ten. On or about November 11, 2001, Petitioner submitted an application for renewal of her family child care home license. On December 4, 2001, Donna Richey, an inspector with the Department went to Petitioner's home to conduct a re- licensing inspection. The purpose of the inspection was to determine if Petitioner was complying with the licensing rules and to make a recommendation on Petitioner’s application for renewal. Ms. Richey arrived at Petitioner’s house at about 1:30 p.m. Through a pane glass window, Ms. Richey observed a child sleeping on a mat in the dining room hall area. She also heard a child whimpering. Because Ms. Richey knew that there were children in the house and it was naptime, she knocked softly on the door for a few minutes. After getting no answer, Ms. Richey rang the doorbell twice, but still received no answer. After there was no response to Ms. Richey’s knocking on the door and ringing the doorbell, she walked to the back of Petitioner’s house, thinking that Petitioner may have been out in the back of the house. Finding no one there, Ms. Richey then returned to the front of the house and rang the doorbell again. When Ms. Richey returned to the front of the house, she observed that the child on a mat in the dining room hall area was still asleep. Upon returning to the front of the house, Ms. Richey tried the front door handle and discovered that it was unlocked. Ms. Richey then entered the house where she observed Petitioner asleep on the couch in the family room. Ms. Richey then called Petitioner, who woke up and appeared startled. Petitioner had dozed off and advised Ms. Richey that the reason she may not have heard the doorbell ring or the knock on the door was that she had a hearing loss and was lying on her “good” ear. Ms. Richey and Petitioner then toured the areas of Petitioner’s house where the five children, in Petitioner's care that day, were down for their naps. At the time of the tour, all five of the children, who were ages three and four, were in their designated napping areas and on their mats. One child was asleep on a mat in the dining room hall area; two children were on separate mats in one bedroom; one child was on a mat in the hallway; and another child was sleeping in the classroom area. During the time Ms. Richey was at Petitioner’s house for the re-licensure inspection, none of the children were crying, all the children were clean, and Petitioner’s house was neat and clean. There was a fence around the children’s playground in Petitioner's backyard. The fence had been approved by the Department as part of the licensure process. Also, there was a lock on the back door of Petitioner's house that was placed at a height that was not within the children's reach. There was a canal behind Petitioner’s house, which was about 60 yards from the house. In addition there was a five- foot high chain link fence that extended across the back of Petitioner’s property that served as a barrier between Petitioner’s yard and the canal. The fence provided a barrier that made it impossible for the children to easily access the canal. However, the Department determined that the canal was a potential hazard for the children in Petitioner’s care, when she was asleep and the front door of the house was unlocked. There was a main road within the subdivision in which Petitioner's house was located that was about 100 yards from her house. The Department was concerned that because Petitioner’s front door was unlocked and Petitioner had dozed off, the main road could have been a possible hazard to the pre-school children. During the approximately ten minutes that Petitioner was asleep, the children in her care were not being supervised. The Department requires that individuals licensed to provide child care supervise the children in their care. Following the Department’s re-licensing inspection on December 4, 2001, a report of neglect was made and an investigation was conducted. The results of that investigation and the findings and conclusions thereof are summarized in Abuse Report 2001-194692 (abuse report), which was completed on or about December 21, 2001. The abuse report found that on December 4, 2001, Petitioner fell asleep for a few minutes after she had put the five children in her care down for their afternoon nap and that during the time Petitioner was asleep, the children were not supervised. With regard to observations of Petitioner's “day care center,” the investigator noted in the abuse report that Petitioner’s home was “very clean and well kept” and “hazard free” and that there were no hazards observed in the home. Based on the findings of the investigator, relative to Petitioner’s falling asleep, the case was “closed with verified findings of neglect due to inadequate supervision with caretaker present.” The abuse report notes that officials closed Petitioner's facility on or about December 5, 2001. In addition to the incident that occurred on December 4, 2001, the abuse report referred to alleged incidents that took place prior to Petitioner’s being licensed in January 2001. These alleged incidents are not relevant or material to this proceeding in that they were not stated in the January 9, 2001, denial letter to Petitioner as the basis for the Department’s decision to deny Petitioner’s application for renewal of her family child care home license.1 The Department’s January 9, 2002, letter denying Petitioner’s application for renewal of her family child care home license stated in relevant part the following: This letter is to advise you that your application to renew your family day care license, dated November 11, 2001, is denied. In accordance with Section 402.310(10)(a), Florida Statutes, the department may deny a license for the violation of any provision of Sections 402.301-402.319, Florida Statutes, or rules adopted thereunder. The decision is based on the fact that abuse report number 2001-194692 indicates you have a verified report of child neglect for inadequate supervision-caretaker present. On December 4, 2001, during a re-licensing inspection, you were found to be asleep while five children ages, 3 years to 4 years, were in your care. This is in violation of Section 65C-20.009(3)(a), Supervision by Staff, Florida Administrative Code. This states[,] “At all times which includes when children are sleeping, the operator shall remain responsible for the supervision of children in care and capable of responding to the emergencies and needs of children. During the daytime hours of operation, children shall have adult supervision which means watching and directing children’s activities, both indoors and outdoors, and responding to each child’s needs.” Additionally, your actions were in violation of Section 402.301, Florida Statutes, which express [sic] the intent of the Florida Legislature to protect the health, safety, and well being of the children of the state and to promote their emotional and intellectual development and care. Petitioner does not dispute that she dozed off a few minutes on December 4, 2001, but testified credibily that this was an isolated incident. This is substantiated in a letter of support from Cynthia Ray, a former employee of Petitioner who worked at the center. Ms. Ray also served as a substitute for Petitioner and was listed on Petitioner's family child care home license as such. The letter from Ms. Cheryl Ray states that Petitioner has a high energy level, seldom sits down for any length of time, and is always "preparing, cleaning, organizing and doing book work." According to Ms. Ray's letter, it "was out of character for [Petitioner] to fall asleep" while the children were napping or at the center. With regard to the front door being unlocked, Petitioner explained that over the years, the policy or practice of the Department has changed. Petitioner was aware that at one time, the Department required that the door of a child care facility be unlocked so that parents could come in unannounced. Apparently, the Department’s current policy or procedures require that the doors of a child care facility be locked. In light of the policy, Petitioner stated that she would ensure that the doors of her family child care home would be locked. Petitioner has a combined 30 years of experience as a teacher and a principal in Montessori schools. At the time she was licensed by the Department, Petitioner used the Montessori method of instruction and had her home set up consistent with this approach. Parents of children who have been cared for by Petitioner expressed satisfaction, trust, and confidence in Petitioner’s ability to care for their children. They also believe that she has had a positive influence on the children's intellectual and emotional well-being. Many of the parents who testified had several years of experience working with Petitioner as the child care provider for their children. The parents believe that the educational program provided to their children while they were in Petitioner’s care is exceptional. Those parents whose children have left Petitioner’s program to attend kindergarten believe that the educational program provided by Petitioner prepared the children for kindergarten and made the transition to school easier for them. Parents who have had children in Petitioner’s care over the years and up until December 2001, have “dropped in” Petitioner’s home during the day when children were in her care and have never seen anything “amiss” or of concern to them. Parents who have had children in Petitioner's care testified credibly that Petitioner never neglected their children and that they felt their children were safe at Petitioner’s home and not in any danger. Despite the incident that occurred on December 4, 2001, the parents who testified at hearing continue to trust Petitioner to care for their children. The four-year-old daughter of Kevin and Rachel Walsh attended Petitioner's center from the time she was four weeks old, until the center closed in December 2001. The Walshes also have an older son who attended Petitioner's center for four years. During the time Petitioner has been caregiver for their children, the Walshes have been very pleased and satisfied with the care and the education that Petitioner provided to the children. For the past six years, Mrs. Walsh has dropped in unannounced at Petitioner's center and has been satisfied with what she has observed. According the to the Walshes, when in Petitioner's care, their children were in a "clean, safe, happy and learning environment" and learned "not only reading, writing, and math, but also manners and respect." The Walshes indicated that "those qualities make it comfortable for us to relax at our jobs knowing our kids are comfortable and happy." The Walshes live in the same neighborhood as Petitioner and, like Petitioner, they also have a canal behind their house. Because there is a fence which serves as a barrier between Petitioner's yard and the canal, the Walshes do not believe the canal was a hazard for children at Petitioner's center on December 4, 2001, or at any other time. On the day of the re-licensure inspection, the Walsh's daughter was not at the center. Nonetheless, the Walshes expressed utmost confidence in Petitioner to care for their daughter. Since Petitioner's center has been closed, the Walshes have not placed their daughter in another center. It is their desire to return their daughter to the care of Petitioner. Keith and Sharon Delafield's daughter was in the care of Petitioner on the day of the re-licensure inspection and had been in Petitioner's care for about three years. Mr. Delafield testified that during the time that his daughter attended the center, he visited the center, was satisfied with the care his daughter received, and always found the home to be neat and clean. Mr. Delafield believes that his daughter was the child who was whimpering on the day of the re-licensure inspection because she does not like to take naps. However, Mr. Delafield does not believe that she would have gone out of the house without permission of Petitioner. Moreover, despite the events of December 4, 2001, the Delafields trust Petitioner "whole heartedly" with the care of their daughter. According to the Delafields, during the time that their daughter was in the care of Petitioner, there was not a day that she "came home unfed, unclean, untaught, or unloved." Mr. and Mrs. Delafield, are planning to have another child and when they do, it is their desire to place the child with Petitioner. Valerie Senden has had two children attend Petitioner's center even though it is a 30 to 40 minute drive from her house. Ms. Senden's decision to place her children with Petitioner was made after she visited six other centers, all of which she found unsatisfactory. The basis of her dissatisfaction was her observation of the way that children were treated at those centers. During the time that Ms. Senden's children attended Petitioner's center, Ms. Senden made unannounced visits to the center and also spent the day and various parts of the day at the center helping Petitioner. During these visits, Ms. Senden never saw anything that caused her to be concerned about Petitioner's care of the children. Had Ms. Senden seen anything she didn't like or that she believed to be improper, she would have "pulled her children out of the center." Since Petitioner's center was closed, Ms. Senden has not placed her children in another center. Diann Myrick has a son who attended Petitioner's center from about August 2001 until it was closed in December 2001. Ms. Myrick does not believe that her child was ever neglected by Petitioner and is completely satisfied with the care that he has received from her. Moreover, Ms. Myrick testified that every time that she has come to the center to pick up her son, the door is always locked. According to Ms. Myrick, with Petitioner's guidance, her son is learning discipline as well as receiving an education. Ms. Myrick believes that these are things that she has been unable to find in private day care centers. With regard to Petitioner, Ms. Myrick testified that Petitioner is a good caregiver, and that both the children and the parents love Petitioner. Ms. Myrick testified that she wants to put her son in Petitioner's center when and if it is re-opened. Eight letters of support for Petitioner substantiate the testimony at hearing. In these letters, parents whose children have been in the care of Petitioner describe her as "a wonderful teacher and caregiver," an individual who is "honest, competent, and genuine," and a "teacher with compassion, care, and respect for others." Petitioner's center is described as being "not just clean, but immaculate." The parents expressed satisfaction with the education and care that Petitioner provided to their children; indicated that they trust Petitioner to care for their children; and believe it would be a disservice to the children, the parents, and the community to refuse to allow Petitioner to re-open her center.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a final order that denies Petitioner's application for renewal of her family child care home license without prejudice to her right to re-apply for such license in the future. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2002.
The Issue Whether the Respondent committed the acts charged in the Department of Children and Family Services' (Department's) letter of November 21, 2006, and if so, what penalty should be imposed?
Findings Of Fact Pearl Wright holds Family Day Care Home License No. F03PU0037, issued by the Department on April 26, 2006, for the year ending April 26, 2007. Ms. Wright has worked with children for approximately 27 years. On September 22, 2006, Ms. Wright had five children in her care. Three of those children are her grandchildren, who were 9, 11, and 13 years old. In addition to her grandchildren, Ms. Wright was caring for a 22-month-old named Talia and a 14- year-old named Jahlisa. Jahlisa is deaf and has some behavioral problems. She previously attended the Florida School for the Deaf and Blind. However, when Jahlisa's mother, E.M. was notified that the school could not accommodate her any longer, Ms. M. was forced to place Jahlisa in public school and find child care for her after school. According to Ms. M., Ms. Wright opened her doors when no one else would. On the day in question, Ms. Wright's vehicle was at the dealership for repairs and had to be picked up before the shop closed. Ms. Wright arranged for the dealership to send a courtesy van to her home so that she could take all five children with her to pick up the car at the end of the day and return home with them. When the van arrived at Ms. Wright's home, Jahlisa refused to board it. Her mother was expected any minute and Jahlisa wanted to wait for her. When Jahlisa refused to get in the van, Ms. Wright instructed her grandsons to go to their rooms and stay there. She instructed her 13-year-old granddaughter Quashonda to watch Jahlisa and Talia until their parents came, which she anticipated to be no more than a few minutes. Ms. Wright took the courtesy van to the dealership, picked up her car and came straight back. She was gone approximately fifteen minutes. During her absence, Ms. M. came to pick up Jahlisa. She saw her standing approximately one half block from the Ms. Wright's house, waiting for Ms. M. to pick her up. Jahlisa was not harmed. Ms. M. was not upset with Ms. Wright and "understood that she had to do what she did." She appreciated the care that Ms. Wright gave her daughter, but did not want Jahlisa to be alone. She was more upset that her daughter was no longer attending the Florida School for the Deaf and Blind, and reported the events in this case because she wanted the school to be investigated. T.P. is Talia's mother. Talia was 22 months old in September 2006. When Ms. P. came to pick her daughter up on September 22, Ms. Wright was in the front yard with Jahlisa, Jahlisa's mother and a policeman. Ms. P. picked up her child and left. She is aware of what occurred September 22, but remains steadfast in her support of Ms. Wright, who she refers to as "Miss Pearl." She does not feel Ms. Wright would ever put her child in danger, and considers Ms. Wright to be a blessing. Talia considers Miss Pearl to be like grandmother to her and has thrived under her care. Ms. Wright accepts responsibility for her actions and states that it will never happen again. No evidence was presented at hearing to indicate that there have been any subsequent events with respect to appropriate supervision. The undersigned is persuaded that her remorse is genuine. Ms. Wright has worked with local teachers in the public school system trying to make sure that the children in her care keep their grades up. Her testimony in that regard is consistent with the letter supplied by Gladys Wade, a kindergarten teacher who indicated that Ms. Wright has been the day care provider for children in her classes for over five years. According to Ms. Wade, Ms. Wright calls to check on her students regularly, gives them "pep-talks" when needed and makes sure their homework is completed. Ms. Wright works with the children on skills identified by Ms. Wade to reinforce those skills in the daycare setting. The Department presented testimony indicating that there had been past disciplinary actions for which Ms. Wright paid fines. However, no prior final orders were submitted with respect to any prior disciplinary history.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds that Respondent violated the provisions of Florida Administrative Code Rule 65C- 20.009(4)(a), for which violation Respondent is fined $100 and her license is placed on probation status. DONE AND ENTERED this 14th day of May, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 14th day of May, 2007.
The Issue Should the Petitioner, Nikki Henderson, d/b/a Henderson Family Day Care Home, be granted a license to operate a family day care home pursuant to section 402.313(3), Florida Statutes (2015)1/ because she does not satisfy the screening provisions of sections 402.305(2) and 402.3055?
Findings Of Fact Ms. Henderson is the mother of four children. She has been a good parent, seeing to their education. She volunteers as the minister of music in a church. She has also taken college courses. Ms. Henderson wants to start a family day care center. On September 12, 2014, the Department granted Ms. Henderson an exemption from disqualification from working with children and other vulnerable populations due to a criminal conviction. This means that just over a year before the hearing, the Department determined that Ms. Henderson proved by clear and convincing evidence that she was rehabilitated and should not be disqualified from employment. § 435.07, Fla. Stat. In the exemption process, the Department could consider the person’s history since the disqualifying criminal offense and “any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed.” § 435.07(3)(a) Fla. Stat. A family day care home is an occupied residence, in which child care is regularly provided for payment. The children served under the age of 13 and from at least two unrelated families. § 402.302(8), Fla. Stat. The Department is the licensing authority for family day care homes. It considers an applicant’s criminal history, as well as any reports concerning abuse or neglect maintained in the Department’s statewide database, Florida Safe Families Network (FSFN), formerly known as HomeSafeNet, in licensing decisions. The Department received Ms. Henderson’s completed application to operate a family day care home on June 25, 2015. By letter dated September 2, 2015, and served September 4, 2015, the Department announced its intent to deny the application based upon two verified reports of inadequate supervision of her children and three reports of complaints all closed with “no indicators” or “not substantiated” conclusions. The reports named Ms. Henderson as the caregiver responsible for the children involved. When using either HomeSafeNet or FSN, investigators input information as they collect it. But they do not input all of the information immediately. The information is much more than what the investigators have observed. Most of the information is recitations of statements of others about what the others observed. The FSFN and HomeSafeNet databases contain records of the following reports involving Ms. Henderson: 1999-089863-01 (Ex. C), 2002-136612-01 (Ex. D), 2004-420815-01 (Ex. E), 2005- 323618-01 (Ex. F), and 2012-126218-01 (Ex. G). These are the reports that the Department relies upon to support denying Ms. Henderson a license. The reports set forth activities of the agency’s investigators, stating what they did. What the investigators did was interview people and report what those people said or what they said someone else said. The reports contain very little directly observed by the reporters. The information contained in the reports that the Department relies upon is largely hearsay or hearsay reports of hearsay. The reports consist mostly of summaries of records reviewed by the reporter or summaries of statements by other individuals. They are not reports of information about which the reporter has direct knowledge. The reports do not identify who the investigator obtained the information from. In short all of the statements in Respondent’s Exhibits C through G about anything Ms. Henderson did or did not do are hearsay recitations of statements made to and summarized by the reporters or summaries of documents reviewed. §§ 90.801 & 90.802, Fla. Stat. Hearsay alone cannot support a finding of fact. § 120.57(1)(c), Fla. Stat. The reports also are not competent or persuasive evidence that the assertions in them are accurate. Ms. Henderson disputes the reports. Her live testimony, subject to cross examination, is more persuasive than the words of the reports. The reports do not satisfy the requirements for the business record hearsay exception of section 90.803(6), or the public record exception of section 90.803(8). See, e.g., Lee v. Dep't of HRS, 698 So. 2d 1194, 1200 (Fla. 1997) (investigative report of pregnancy of woman with a disability residing in a state facility not subject to the public record exception). See also, Brooks v. State, 918 So. 2d 181, 193 (Fla. 2005), cert. den., Brooks v. Fla., 547 U.S. 1151, 126 S. Ct. 2294, 164 L. Ed. 2d 820 (2006); M.S. v. Dep't Child. and Fams., 6 So. 3d 102 (Fla. 4th DCA 2009). Application of the hearsay rule is no mere legal technicality. The hearsay rule is one of the oldest and most effective means of ensuring decisions that determine people's lives and fortunes are based on reliable information. Florida's Fifth District Court of Appeal described the importance of the rule as follows: Rules governing the admissibility of hearsay may cause inconvenience and complication in the presentment of evidence[,] but the essence of the hearsay rule is the requirement that testimonial assertions shall be subjected to the test of cross examination. 5 Wigmore on Evidence, § 1362 (Chadbourne Rev. 1974). As stated by Professor Wigmore, the hearsay rule is "that most characteristic rule of the Anglo- American law of evidence -- a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world's methods of procedure." 5 Wigmore on Evidence, at § 1364. Dollar v. State, 685 So. 2d 901, 903 (Fla. 5th DCA 1996). A complaint on July 18, 1999, triggered the investigation resulting in Report 1999-089863-01 (update date November 16, 2000). (Dept. Ex. C). The report summarizes the investigation of an allegation that Ms. Henderson (then Nikki Stanley) “left [her child] Deuteronomy in his carrier sear [sic] on the steps of the alleged Dad’s home,” knocked on the door and drove away. The allegations continue that the adults were inside and that the alleged father’s mother found the child on the steps. Ms. Stanley, who testified and was cross-examined at the hearing, went with Ms. Henderson to leave the child at the father’s home. Ms. Stanley personally placed the child in the hands of an adult at the house. Ms. Stanley and Ms. Henderson also delivered Pampers and milk. Ms. Henderson’s credible and consistent position has always been that she did not leave the child unattended at the house where the child’s father lived. The testimony of Ms. Stanley and Ms. Henderson is consistent with some statements in the report and more credible and persuasive than the allegations recited in the report. The Department closed the investigation with verified findings of inadequate supervision and no indicators of physical injury. The Department did not provide Ms. Henderson an opportunity for a hearing to contest the findings. The Department filed a dependency petition against Ms. Henderson because of the report. It gave her a case plan, requiring the provision of protective services supervision by the Department. The Department did not remove the child from Ms. Henderson’s care. The Department did not prove by the preponderance of the evidence that Ms. Henderson left Deuteronomy alone on the steps on July 18, 1995. She did not. Report number 2002-136612-01 chronicles the investigation of allegations received on August 23, 2002, described as “Physical Injury,” Substance Exposed Child,” “Inadequate Supervision,” and “Environmental Hazards.” (Dept. Ex. D). The report is a confusing document and contains no information about environmental hazards or a child being exposed to a substance. It is not a credible report of anything involving alleged harmful conduct by Ms. Henderson or conduct endangering a child. In fact although the case started as an investigation of her, it ended with the suspected father of the child identified as the possible perpetrator, not Ms. Henderson. Representative paragraphs are reproduced here. ALLEGATION NARRATIVE: ON A RECENT NIGHT, THE MOTHER BROKE WINDOWS AND CAUSED PROBLEMS AT THE HOME OF THE ALLEGED PATERNAL GRANDMOTHER, BARBARA BROWN, WHERE GEORGE [the child apparently involved] WAS AT THE TIME. THIS OCCURRED ABOUT 3:00 A.M. MOTHER HAD CALLED THE ALLEGED FATHER, ALVIN WALLACE (MS. BROWN’S SON/NO DNA TEST DONE YET TO DETERMINE PATERNITY), EARLIER IN THE EVENING. SHE TOLD HIM SHE WAS GOING TO JAIL, AND SHE TOLD HIM TO GET GEORGE, WHICH HE DID AT 3:00 A.M., MOTHER SHOWED UP WANTING GEORGE. LAW ENFORCEMENT WERE CALLED. THEY ADVISED THE MATERNAL GRANDMOTHER, SHARON STANLEY, TO LET MR WALLCE AND MS. BROWN KEEP GEORGE. MOTHER AND GEORGE LIVE AT ADDRESS A WITH THE MATERNAL GRANDMOTHER, ABOUT WHOM CONCERN WAS EXPRESSED BECAUSE SHE HAS SEIZURES. PATERNAL GRANDMOTHER HAS NOW GOTTEN AN INJUNCTION AGAINST MOTHER. MOTHER DID NOT HAVE TO GO TO JAIL. ITS UNKNOWN WHY SHE THOUGHT SHE HAD TO GO. MOTHER’S LIFESTYLE AND BEHAVIOR ARE SAID TO BE ““QUESTIONABLE.”” MS. BROWN AND MR. WALLACE LIVE AT ADDRESS B. 24 HOUR. ALLEGATION NARRATIVE: RIGHT NOW, GEORGE IS AT THE HOME OF THE ALLEGED PATERNAL GRANDMOTHER, BARBARA BROWN, ADDRESS B. NO DNA TEST HAS BEEN DONE. SO IT HAS NOT BEEN DETERMINED TH[A]T MS. BROWN’S SON IS GEORGE’S FATHER. GEORGE SPENT THE WEEKEND AT MS. BROWN’S HOME, AND MS. BROWN NOW REFUSES TO GIVE GEORGE BACK TO THE MATERNAL GRANDMOTHER. ALLEGATION NARRATIVE: MR. WALLACE SHOOK GEORGE TODAY AROUND 7 PM. MR. WALLACE WAS OUTSIDE WITH GEORGE. GEORGE WAS CRYING. MR. WALLACE THREW GEORGE INO THE HAIR [SIC] AND SHOOK HIM. IT IS UNKNOWN IF GEORGE SUFFERED ANY INJURIES AFTER BEING SHOOK. MR. WALLACE HAS A HISTORY OF SELLING AND USING COCAINE AND MARIJUANA. HE WILL SELL THE DRUGS FROM HIS HOME AND ON THE STREETS. IMMEDIATE. INVESTIGATIVE DECISION SUMMARY: BACKGROUND INFORMATI0N: THE FAMILY HAS ONE PRIOR FROM 1999 WHERE PROTECTIVE SERVICES WERE INVOLVED DUE TO VERIFIED INADEQUATE SUPERVISION. ADJUDICATION WAS WITHELD [sic]. THE MOTHER AND HER TWO CHILDREN INVOLVED IN THE PRIOR LIVE WITH THE GRANDPARENTS AND THE NEW BABY IN LAKELAND. PS CLOSED IN 2001. THE MOTHER HAS A CRIMINAL HISTORY THAT INCLUDES A BATTERY CHARGE FROM 2002. CONCERNS OVER THE ALLEGED FATHER ALVIN WALLACE. DUALING [sic] INJUNCTIONS SUBJECT INFORMATION: THE CASE APPEARS TO BE CUSTODY RELATED. THERE WERE CONCERNS OVER THE ALLEGED FATHER ALVIN WALLACE. DUALING [sic] INJUNCTIONS BETWEEN MOM AND PROSPECTIVE FATHER WERE FILED AND BOTH DISPUTED OVER THE CUSTODY OF THE CHILD. JUDGE SMITH GRANTED AN INJUNCTION AGAINST THE ALLEGED FATHER AND GAVE CUSTODY TO THE MOTHER. LATER, THE RESULTS OF THE DNA SCREEN SHOWED THAT MR. WALLACE WAS NOT THE FATHER. HE IS NO LONGER A THREAT AND DOES NOT HAVE CONTACT WITH THE BABY. SHAKING OF CHILD ALLEGATION WAS BOGUS. LEGAL CONTACT: JUDGE SMITH OF D/V COURT GAVE CUSTODY TO MOM AND GRANTED INJUNCTION AGAINT MR. WALLACE WHO TURNED OUT NOT TO BE THE FATHER AFTER A DNA TEST. FAMILY AND COMMUNITY SUPPORT: MOM HAS DV INJUNCTION AND FAMILY SUPPORTS. SERVICES AND REFERRALS: I.E NOTIFIED. CASE APPEARS TO HAVE BEEN CUSTODY RELATED. MR. WALLACE WAS LATER PROVED NOT TO BE THE FATHER AND NO LONGER HAS ANY CONTACT OR RIGHTS TO THE CHILD WHO LIVES WITH THE MOTHER, GP’S AND OTHER SIBLINGS. HE IS NO LONGER A POSSIBLE THREAT TO THE CHILD. CLOSE CASE AS BACKLOG. CONVERTED ICSA SAFETY ASSESSMENT 06/15/2006 *ICSA INITIAL OVERALL SAFETY ASSESSMENT* RISK IS LOW. ALLEGED PERP [Mr. Wallace] WAS DETERMINED NOT TO BE THE DAD AND IS NO LONGER HAVING CONTACT WITH CHLD. *ICSA UPDATED OVERALL SAFETY ASSESSMENT* RISK IS LOW: ALLEGED PERP WAS DETERMINED NOT TO BE THE DAD AND IS NO LONGER HAVING CONTACT WITH CHILD. The Department closed the investigation with no indicators for any of the alleged mistreatment. The report did not conclude that Ms. Henderson acted improperly or did not act when she should have. The Department initiated case number 2004-420815-01 on September 29, 2004, in response to an allegation that Ms. Henderson was leaving her four children at home alone at night. (Dept. Ex. E). At the conclusion of the investigation, the Department determined that there were no indicators of inadequate supervision. The summary concluded: “The Mother has made adequate arrangements for the children while she works thus not causing a concern for safety and/or permanency.” On February 8, 2005, the Department received a complaint alleging that Ms. Henderson was leaving the children at home alone and coaching them to tell people that she was home, but asleep. The Department started an investigation resulting in report number 2005-323618-01 (Dept. Ex. F). The Department closed this investigation with verified findings of inadequate supervision. It filed another dependency petition to obtain court-ordered protective services supervision. The court ordered a case plan that included a requirement to complete a parenting program. During this open case, Ms. Henderson demonstrated some lack of responsiveness to the Department’s preferred eight-week in-home parenting program. She took a one-day program at the Polk County Courthouse instead. The court, whose order Ms. Henderson was to comply with, accepted this class as satisfying the parenting program, over the Department’s objection. Basically the Department is second-guessing the court’s ruling and treating Ms. Henderson as if she had not met the court’s requirements when she did. On May 31, 2012, Ms. Henderson reported to the Department that a school intern inappropriately touched the breasts of Ms. Henderson’s 14-year old daughter. This initiated report number 2012-126218-01. (Dept. Ex. G). Ms. Henderson was not the subject of the investigation. The intern was. Ms. Ebrahimi was the child protective investigator supervisor at the time of this report. She has personal knowledge of some of the facts in that report and testified about them. Ms. Henderson was very upset about the incident. She acted vigorously and promptly to protect her daughter. Ms. Henderson immediately picked up her daughter and reported the incident to the Department and the school. She insisted that the school remove her daughter from the intern’s class. She also arranged for her daughter to attend a different school the next year. Only one week was left in the current school year. She obtained a temporary injunction against the intern. Ms. Henderson also sought to obtain a permanent injunction to protect her daughter. Ms. Henderson did everything lawful that a loving protective parent could do for her child. The day after the incident Ms. Henderson spoke to Detective Rose. He told Ms. Henderson that the authorities did not perceive sufficient evidence to take actions to protect her daughter, including obtaining an injunction. Even Ms. Ebrahimi concedes that Ms. Henderson was very cooperative with the Department and protective of her child. Ms. Ebrahimi faults Ms. Henderson for, in Ms. Ebrahimi’s view, not following through on the permanent injunction and failing to return phone calls from the Department’s investigator. Ms. Henderson did not receive calls or messages from the investigator. Ms. Ebrahimi does not have personal knowledge of whether the investigator called Ms. Henderson. Ms. Henderson’s testimony about not receiving calls from the investigator is more credible and persuasive than the cryptic notes in the report. Ms. Henderson’s actions were entirely reasonable and protective of her daughter. A person in authority told her that she could not obtain an injunction. So she took no further actions on that front. Ms. Henderson acted immediately to have the offender removed from contact with her child. She arranged for her child to be transferred to a different school. The Department’s investigative summary itself shows the reasonableness of Ms. Henderson’s actions and the difficult circumstances she faced, including a lack of support from responsible authorities, when her 14-year-old daughter reported an intern fondling her breasts at school. The report says: The child states that the intern touched her breast. She disclosed that she told the teacher who did nothing about it. Stated she also told her mother who made a report to law enforcement. The intern is no longer in the child’s classroom but is still at the school per the mother. CPI to update as more information is received. UPDATE: Risk low. Several statements in the report substantiate Ms. Henderson’s recall of events and buttress the determination that she is more persuasive than the document. It also demonstrates that the alleged calls were for the bureaucratic process of closing the case, not furthering the investigation to protect Ms. Henderson’s daughter. In addition, it is difficult to imagine what additional information the DCF investigator could obtain from Ms. Henderson. She had already told DCF all she knew about the assault. The summary also supports Ms. Henderson’s testimony that a police officer told her the police would not pursue the case. It states: “Other children reportedly also reported witnessing, then recanted to Lakeland Police Detective. Lakeland Police not pursuing further, did not find alleged victim credible.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Children and Families, enter a final order granting the application of Petitioner, Niki Henderson d/b/a Henderson Family Day Care Home, to operate a family day care home. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 2nd day of May, 2016.
The Issue The issue is whether Respondent should deny Petitioner's application to operate a registered family day care home on the grounds that two incidents of child neglect demonstrate Petitioner's inability to ensure the safety of children under Petitioner's care.
Findings Of Fact Respondent is the state agency responsible for registering family day care homes in Florida. Respondent operated a registered family day care in her home from sometime before July 30, 2001, until the registration expired on July 29, 2002. In November 2002, Petitioner applied to operate a registered family day care home, Respondent proposes to deny that application. Respondent's licensing division conducted a background screening investigation of the applicant in accordance with applicable statutes and rules. The investigation revealed two reports in the Florida Abuse Hotline Information System (FAHIS) in which children under Petitioner's care suffered injuries. By letter dated January 27, 2002, Respondent notified Petitioner that Respondent proposed to deny Petitioner's application to operate a registered family day care home (Notice of Denial). The Notice of Denial provides that the two incidents of injuries to children under Petitioner's care demonstrate an inability to "ensure the safety of children to the level necessary to be registered as a family day care." On August 9, 2000, Respondent received a report alleging that a child in Petitioner's care received bite marks. Respondent investigated the report and closed the report in an untimely manner sometime in 2002 as verified for maltreatment. The final report named Petitioner as the perpetrator of maltreatment. On July 30, 2001, Respondent approved Petitioner's application to operate a registered day care home. Respondent approved the application after Respondent received the report of maltreatment on August 9, 2000, but before Respondent closed the report in 2002. The registration approved by Respondent on July 30, 2001, expired on July 29, 2002. On November 1, 2001, Respondent received a second report alleging that a child under Petitioner's care was injured. Respondent investigated the report and timely closed the report verified for inadequate supervision. The report found that a child in Petitioner's care received bite marks, bruising, scratches, and a swollen upper lip while in an unsupervised room with two other children. The report found that the cause of the injuries was unknown. Petitioner did not request a hearing to challenge either the report of maltreatment or the report of inadequate supervision. The time for contesting the content of the reports has expired. Petitioner's registration to operate a family day care home expired on July 29, 2002. Respondent should not grant Petitioner's application to operate a registered family day care home. The evidence is clear and convincing that Petitioner is unable to ensure the safety of children to the level necessary to operate a registered family day care home.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application to operate a registered family day care home. DONE AND ENTERED this 11th day of July, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Sheila D. Engum, Esquire Post Office Box 620837 Oviedo, Florida 32762-0837 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 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
