Findings Of Fact At all times material hereto, Respondent was a licensed operator of a Family Day Care Home located at 2927 Monte Carlo, Orlando, Florida. Licenses to operate a Family Day Care Home are issued by the Department of Health and Rehabilitative Services for periods of one year. Respondent's license was first issued in 1991 and was last renewed on June 21, 1994. It was valid through June 21, 1995. Respondent's Family Day Care Home has been closed voluntarily since July 18, 1994. Respondent submitted an application to renew her license prior to its June 21, 1995 expiration date. Petitioner denied Respondent's license renewal application by letter dated June 21, 1995. Petitioner has not cited Respondent for any code violations in her home at the time of the renewal. At the time of Respondent's application for license renewal, she met all training requirements for an operator of a family day care. In November of 1993, while in the care of Respondent, a child had suffered burns while at Respondent's family day care home. No charges, criminal or administrative, were filed against Respondent and her license was renewed the following year. In mid-June, 1994, Vanecia McCree, a 24-month old child began attending Respondent's day care, along with her brother and sister. On July 18, 1994, the child had been dropped off at Respondent's family day care home by her mother, Michelle McCree, at approximately 10:30- 11:00 a.m. When the mother dropped off the child on July 18, 1994, she informed Respondent that she wanted the child to change from regular diapers to pull-ups. She requested that Respondent to start potty training the child. Respondent told Ms. McCree that the child was not ready for pull-ups yet because she displayed no signs of using the restroom on her own. When Respondent first attempted to have the child use the bathroom on the morning of July 18, 1994, the child appeared "hysterical" and "frantic" and appeared to be in pain. When Respondent asked the child if she was in pain, the child nodded her head in the affirmative. This caused Respondent to be very concerned about the child's condition. Respondent did not call the mother or Department of Health and Rehabilitative Services at that point because she had been informed by the child's grandmother that the child had "knots" in her genital area and that the child had an infection. Respondent had been informed by the child's brother that the child had been taken to the hospital the previous night. The child was under Respondent's constant supervision the entire day. The only time during the day that the child was not constantly in the same room as Respondent was while the child was sleeping. During the time the child was napping, Respondent was out of the room during certain periods, but constantly kept the child in her sight. Throughout the course of the day, the child never fell, never appeared to sustain any injury, and never had an outburst which would indicate she had been injured. At approximately 4:45 p.m., when Respondent took the child to the restroom, she discovered spots of blood in the child's pull-up diaper. Upon noticing the spots of blood in the child's pull-up diaper, Respondent immediately telephone the child's grandmother, Barbara McCree. Respondent telephoned the child's grandmother because the grandmother was the person who arranged for the children to attend her facility. Respondent told Barbara McCree that she had discovered "a little blood" in the child's diaper and that the child should be taken to the hospital. Barbara McCree told Respondent that she would call the child's mother to pick up the child, and requested that Respondent save the pull-up diaper and give it to the mother. The mother arrived at Respondent's family day care home at approximately 5:10 p.m. to pick up her children. Upon her arrival, Ms. McCree did not examine the child to see where the blood in the diaper might be coming from. Respondent was upset but gave the pull-up diaper that contained the spots of blood to the mother upon her arrival. Ms. McCree took the child home prior to examining her. When she checked the child, her diaper was full of blood. Ms. McCree took the child to the hospital where she was examined, and on the following day had stitches to close a laceration in her vaginal area. Because of the nature of the injury, it was elected to take the child to the operating room for examination under anesthesia; however the child had eaten two bags of potato chips and some Coke during the extended stay in the emergency area causing the delay in performing the surgical procedure. There was no significant bleeding at the time of the initial examination on July 18, 1994. The injury was corrected surgically on the following morning. It has not been determined when the injury to the child occurred. After extensive examination of the genital area, the injury appeared to be most consistent with a traumatic injury. Following the completion of the investigation, no criminal charges were filed, nor any administrative action taken against Respondent's license. Petitioner's decision to deny Respondent's license renewal was based upon the Licensing Supervisor's belief that the injury to Venecia McCree occurred while the child was in Respondent's care. Respondent's license renewal application was not denied based on any other reason. There was no medical determination that the injury to the child had occurred while the child was in Respondent's care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent's application for renewal of her Family Day Care license be GRANTED. DONE and ORDERED this 14th day of August, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4036 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Petitioner did not file proposed findings. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 (in part), 39 (in part), 40 (in part), 41, 42, and 43. Rejected as irrelevant and immaterial or subsumed: paragraphs 7, 8, 38 (in part), 39 (in part), 40 (in part). COPIES FURNISHED: Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Robert J. Crohan, Jr., Esquire Wade Coye and Associates 2511 Edgewater Drive Orlando, Florida 32804 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, 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 The issue is whether Respondent should approve Petitioner’s application for a family day care home license.
Findings Of Fact In 1996, Petitioner lived with her husband, their newborn child, three of her husband's children from a former marriage, and two of her children from a former marriage. Petitioner's stepchildren were: (a) I.M.B., a 15-year-old male; (b) S.J.B., a 14-year-old male; and (c) S.Y.B., a 13-year-old female. Petitioner's children by her former marriage were: (a) R.D.F., a six-year-old male; and (b) D.F., a five-year-old female. At the end of the school year in 1996, Petitioner spanked her stepdaughter for reasons related to her school work. She also spanked her stepsons for school-related reasons. However, the physical punishment of the stepchildren by Petitioner was not excessive. There is no competent evidence that Petitioner beat the stepchildren leaving bruises, scars, or other disfigurement. Petitioner's husband spanked his children at times, using a switch or an extension cord. After one such occasion, Petitioner's stepdaughter asked for some rubbing alcohol to treat a bruise. Petitioner has no first-hand knowledge about the bruise. There is no persuasive evidence that Petitioner's husband ever disciplined his children so severely as to scar or disfigure them. Since 1996, Petitioner completed her training as a licensed practical nurse. She continues to work part-time in that capacity. Petitioner has also earned money babysitting for other parents. Petitioner has never used corporal punishment of any kind to discipline other people's children. Petitioner has completed all necessary training to operate a family day care home. She knows that corporal punishment is not an acceptable way to discipline children in a day care facility. She understands that when children do not behave appropriately, she may do one of the following: (a) talk to the child; (b) place the child in time-out for one minute per year of age; or (c) call the child's parent. Petitioner currently lives with her husband, their son, and Petitioner's children from her former marriage. Petitioner's stepdaughter also lives with Petitioner. Petitioner's stepdaughter is 18 years of age and will be available to serve as a substitute caretaker if Petitioner is licensed to operate a family day care home facility. One of Petitioner's stepsons, I.M.B., is deceased. The other stepson, S.J.B., is in jail. S.J.B.'s son lives with Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner a license to operate a family day care home. DONE AND ENTERED this 12th day of July, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Kimberly Strange-Bennett Post Office Box 58 Orange Lake, Florida 32681 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner is entitled to have her home licensed and registered as a family day care home under the provision of Chapters 402 and 435, Florida Statutes.
Findings Of Fact On October 17, 2001, Petitioner, Betty Baumstark, submitted an application for a license to operate a family day care home at her residence. On November 29, 2001, the Department conducted an institutional staffing meeting to consider Petitioner's application. During the institutional staffing, the staff recommended that Petitioner's application for a license to operate a family day care home at her residence be denied. Although the institutional staffing committee made a recommendation regarding Petitioner's application, the Department's licensing specialist and supervisor made the final decision regarding the family day care home license. More than two months after the Department's institutional staffing, on February 8, 2002, the Department notified Petitioner by letter that her application to operate a family day care home was denied. The denial letter advised Petitioner that the family day care home license was denied based on the following grounds: (a) Abuse Report 2000-045218 indicated that Petitioner gave temporary custody of her son to friends on or about August 8, 1999, and that Petitioner's friends stated that they asked for the child because Petitioner "could not and would not care" for him; (b) Abuse Report 1999-095828 was closed with some indicators of inadequate supervision with caretaker present; (c) a domestic violence injunction was issued in 1997 against Petitioner's fiancé, Michael Canty; and (d) Petitioner had stated that she had experimented with drugs. The Department does not allege any other basis for denial of the license. Accordingly, it is found that, except for any requirements and minimum standards covered by those allegations, Petitioner met all the requirements and minimum standards necessary for licensure as a family day care home. With regard to the allegations in the 2000 Abuse Report, Petitioner did, in fact, give temporary custody of her son to Greg Davis in August 1999, while she was pregnant with her second child. The reason Petitioner gave Mr. Davis temporary custody was because her son acted out his hostility and became unmanageable. Concerned about her son, Petitioner actively sought assistance from various community resources to help her son, but was unsuccessful in doing so. After becoming aware of the situation with Petitioner's son, Mr. Davis, a friend of Petitioner and Michael Canty, offered to allow Petitioner’s son to live with him in an effort to improve the boy’s behavior and performance is school. Because Petitioner had been unsuccessful in obtaining any assistance to address her son's problems, she agreed to allow him to stay with Mr. Davis because she believed it was in her son’s best interests. In fact, during the time Petitioner’s son has lived with Mr. Davis, there has been a significant and positive improvement in the boy’s behavior and his grades in school. Petitioner's son is still living with Mr. Davis and has continued to do well in that setting. Given her son's progress and improvement, Petitioner has allowed him to remain with Mr. Davis. However, Petitioner has not abandoned her son and is still very involved in his life. Petitioner has a good relationship with her son and has maintained contact with him through regular visits and telephone conversations. Petitioner never stated that she could not and would not care for her son. The 1999 Abuse Report of inadequate supervision is based on a limited portion of the investigation which reported that Petitioner was called to pick up her son from a treatment facility and that she failed to pick up her child. This report makes no claim that anyone from the Department or the treatment facility ever spoke to Petitioner and told her to pick up her son from the treatment facility. Moreover, the credible testimony of Petitioner is that she was never contacted and told her that her son was being discharged from the facility and needed to be picked up. During the time period covered in the 1999 Abuse Report, as noted in that report, Petitioner’s son was in the custody of his father and stepmother and not in the custody of Petitioner. The domestic violence injunction referenced in the denial letter names Michael Canty as a party in that proceeding. Mr. Canty was Petitioner’s fiancé at the time of the hearing and, in the event the license was issued, Mr. Canty, who lived with Petitioner, was listed as the person who would be present at the family day care home to assist in Petitioner’s absence. As alleged in the denial letter, a domestic injunction was issued against Mr. Canty in 1997. However, there is no indication of the underlying factual basis for issuance of that injunction. Nothing in the domestic violence injunction, dated November 6, 1997, mentions that any violence had occurred or that the interests of the children in question had been harmed. Moreover, in a subsequently issued order in that case, it is noted that Mr. Canty's ex-fiancée, the person who initiated the injunction proceedings, withdrew her supporting affidavit. According to the credible testimony of Mr. Canty, his ex-fiancée obtained an injunction so that she could take the couple’s children to another city and not because he had committed an act of violence against her. During the years Mr. Canty and his ex-fiancée lived together, there were never any complaints filed with the police that indicate that Mr. Canty engaged in conduct that constitutes domestic violence nor were the police ever called to their home. The Department presented no evidence to the contrary. At some point during one of the investigations, there was an accusation that Petitioner used drugs. In response to a question from someone from "HRS" who talked to her, Petitioner told the person that she had experimented with drugs. Petitioner's experimentation with drugs was limited to smoking marijuana when she was fourteen years old, twelve or thirteen years prior to the hearing in this proceeding. Since that time, Petitioner has not experimented with or used illegal drugs. In 1999, Petitioner submitted to drug testing as a condition of employment with the YMCA and both of the tests were negative. The Department’s notification of denial of Petitioner’s application was more than ninety (90) days from the date the Department received Petitioner's application. The Department made no written request to Petitioner for any additional information concerning her application, but claims that the request for additional information was made by a Department employee during a conversation that employee had with Petitioner. However, the Department employee who allegedly requested that Petitioner provide additional information on the domestic violence injunction involving Mr. Canty did not testify at hearing. Moreover, the Department employees who testified at hearing had not requested any additional information from Petitioner and did not know whether any other Department employee had requested such information from Petitioner. Contrary to the Department's claim, the credible testimony of Petitioner was that the Department never requested or asked her to provide additional information to supplement her application. The Department failed to act on Petitioner’s application within ninety days of receiving it. This statutory time period was not extended because the Department did not request that Petitioner provide additional information regarding her application. Having failed to timely act on Petitioner’s application, the Department is required to grant a family day care home license to Petitioner. Even if the Department had timely acted on Petitioner's application, the substantive bases upon which it seeks to deny the family day care home have not been established in this record.
Recommendation Base 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 a license to operate a family day care home. DONE AND ENTERED this 30th day of August, 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 30th day of August, 2002. COPIES FURNISHED: David P. Rankin, Esquire 14502 North Dale Mabry Boulevard Suite 300 Tampa, Florida 33618 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact After respondent Debra T. Acosta and her husband Joe, a noncommissioned Air Force officer, the parents of Joseph M., 16 at the time of hearing, Jason M. (13), Shawn W. (9), and Tisouli (6), applied to HRS for a day care center license, they were required to have their fingerprints taken and to undergo a background check or "screening." The background check turned up a report of an investigation Air Force personnel had conducted on account of information Carla Burrell, formerly known as Carla Knight, had supplied. The first two numbered paragraphs of the report read: On 2 Mar 88, SSgt CARLA K. BURRELL, USAF Clinic, RAF Bentwaters (RAF), UK provided the following information: She arrived at RAFB from Eglin AFB (EAFB), FL on 21 Apr 85. She was stationed at EAFB from Jan 83 until Apr 85. While stationed at EAFB, her daughter, Angela Kristen Knight, female born: 21 Jan 80, VA, Civ, SSAN: 066-70-1577 (hereafter referred to as VICTIM) stayed with a babysitter during the day. The babysitter was identified as DEBRA ACOSTA, dependent wife of SUBJECT who resides at 318 Blackjack Court, EAFB, FL. DEBRA ACOSTA babysat for several families. After arrival at RAFB, VICTIM entered school and seemed to be worried about something but BURRELL wasn't sure of what it was. According to BURRELL, VICTIM received briefings in school about sexual abuse and was told it wasn't nice for adults to touch children in certain places. This led VICTIM to confide in BURRELL that while they had been stationed at EAFB, SUBJECT would make VICTIM and other young females being babysat by SUBJECT's wife take off their clothes and lie on the bed. On numerous occasions, SUBJECT had placed his hands on VICTIM's bottom and had placed his hands between VICTIM's legs. SUBJECT had touched VICTIM's vagina but had never actually penetrated her vagina. SUBJECT has done the same thing to other female children, but VICTIM stated SUBJECT didn't do anything to boys. In addition, VICTIM told BURRELL SUBJECT would drop his pants and underwear and would place his penis between the legs of the females but did not insert his penis into their vaginas. On 6 Mar 88, VICTIM was interviewed by SA STANLEY B. CRISP and SA BETTY J. WILKINS in the presence of her mother. VICTIM provided essentially the same information as was provided by her mother on 2 Mar 88. VICTIM provided the following additional information not previously reported by her mother. SUBJECT had made her and other young females go into the bedroom at the same time, sometimes even with DEBRA ACOSTA being at home. VICTIM stated however that DEBRA didn't know what SUBJECT was doing. At other times DEBRA wouldn't be at home when the incidents took place. VICTIM couldn't recall the names of the other children who were involved, but stated there were others in the bedroom at the same time. VICTIM stated SUBJECT had never hurt her and had never threatened her with harm. SUBJECT had told the children that they shouldn't tell anyone about what he was doing to them. VICTIM said she wasn't afraid of SUBJECT. The bedroom used was described by VICTIM as an upstairs, spare bedroom. SUBJECT had never made the children go into his bedroom. VICTIM had never told anyone about the incidents until she was told in school of the actions of SUBJECT were wrong. Petitioner's Exhibit No. 7. In February of 1988, Mary Vinyard had given respondent and her husband a letter she and her husband had received from Ms. Burrell. Respondent's Exhibit No. 6. This letter reads: Tom and Mary, Remember me? . . . I'm sorry to say the reason I'm writing is because of a concern I have. I've had nothing but problems with Krissy ever since we got to England. She's doing very well in school, however her behavior has gotten to the obnoxious state. Recently she was referred to a child psychiatrist at Lakenheath (Bentwaters doesn't have one). The Dr. there seems to think part of Krissys problem is that there has been some sort of sexual abuse in the past. She makes up stories, so I have no way of being certain of what she says. Last week after talking to the Dr, on the way home, Krissy suddenly said there had been someone in Florida that had done things he shouldn't have done. She said it was Joe, Debra's husband. I at first couldn't believe it, but she went on to talk about things an 8 year old child really should have no knowledge of. I really don't know what to think however I really don't want to screw up anyone's life. We don't see the psychologist again until next week. I called him and told him of this new development, and he said after two years nothing could be done anyway. I don't believe that. The Air Force seems to be taking a rather relaxed view on this. The reason I'm writing you is to inquire if your children are still in Debra's care. Are you having any trouble with either of them, ightmares, bedwetting, whining? Please do write me back. An answer of any sort will help put my mind at ease. If it is just conjecture, no harm is done. If there is something going on, and Debra is still babysitting, it needs to stop. I just don't want any other parents to go through what I'm going through right now. You may or may not want to consider another babysitter. Please don't tell Debra I wrote, I always thought the world of her and I know the kids loved her. I don't wish to upset their family, especially if this turns out to be nothing; but I'm very suspicious. The day after the Vinyards gave this letter to respondent, Mr. Acosta took it to his commanding officer, Captain Gilmore, and protested his innocence. Captain Gilmore made a copy of the letter and launched the investigation that eventuated in the Office of Special Investigations (OSI) report, set out in part above. Petitioner's Exhibit No. 7. No action was taken against Mr. Acosta as a result of the Air Force's investigation. He has consistently denied Krissy's reported allegations, and did so under oath at the formal hearing in this case. After the OSI report came to HRS' attention, an HRS employee decided "that Debra could get licensed, to continue with the paperwork" (T.370) but as to her only. Eventually HRS did license Debra Acosta to operate Kare Free Day Care (KFDC) at 15 Eglin Street in Fort Walton Beach. KFDC opened in July of 1990. Nobody from HRS asked Mr. Acosta to agree to stay off the day care center premises and neither he nor Ms. Acosta agreed that he would. His presence during various HRS inspections elicited no official, contemporaneous response. T.406-7. Another Allegation Reported Michelle G'Sell dropped her four-year-old daughter Amber and her two- year-old son Adam off at the Acosta family home about seven o'clock in the morning on Mother's Day, May 12, 1991, in keeping with the arrangement she had made with Ms. Acosta the afternoon before, when she picked up her children at KFDC, after their first stay there. At quarter past three Sunday afternoon, Ms. G' Sell again picked Amber and Adam up at KFDC. Ms. Acosta had taken them (and her own two youngest children) to KFDC that morning after feeding Shawn and Tisouli breakfast. As Ms. G'Sell walked to her car with her children "around three steps out of the house" (T.113) Amber said, "Mommy, my twat hurts." Id. Asked when, the child "said when she pees." Id. According to her mother, when they had reached the car, Amber said, "He touched me," id., and, asked who had touched her, pointed to Mr. Acosta, who was standing on the roof of the KFDC building, "and said, 'Him.'" Id. But Jason and Mrs. Acosta (T.512) testified that Mr. Acosta was not at KFDC when Amber left, and Jason testified that his father had not been on the roof that day. T.313. The next morning Ms. G'Sell dropped Adam off at KFDC and signed Amber in, having arranged for her to be brought to KFDC later in the day. But, after somebody at work told her, "You must believe her, and you must report it," (T.115) she called her father and asked him not to take Amber to KFDC. She also reported to HRS that Mr. Acosta had sexually abused Amber the day before, and HRS began an investigation eventuating, according to HRS, in FPSS Report No. 91-050519, "alleging sexual abuse on a female child who was enrolled at KFDC . . . [allegedly perpetrated by] Joe A., the husband of D. A." HRS' Proposed Recommended Order, page 3. On May 17, 1991, Mr. Acosta was arrested on criminal charges of sexually abusing Amber, charges which remain pending. Admitted to bail on condition that he stay away from children under 18 years of age, he was rearrested for being in the presence of his own children. (Neither he nor Mrs. Acosta had realized that their children fell within the reach of the condition.) He has since been readmitted to bail and moved out of the family home. HRS also launched a separate, exhaustive investigation into the operations of KFDC which, while apparently not turning up any other allegation of sexual misconduct, gave rise to the allegations on the basis of which HRS seeks to revoke KFDC's day care center license. Husband Occasionally Helped Out While Anna Maria Root worked at KFDC in the winter and spring of 1991, Joe Acosta brought her eight-year old son to the Center after school, on the same run on which he picked up his own children. T.218. He may have brought another child, too, aside from the Root child and his own children. T.272. On two or three occasions Joe Acosta transported Shawn Holbert to school. T.379. He drove a brown van, "the one we were licensed to transport children in." T.379. After KFDC's initial licensure, Ms. Acosta requested an extension or expansion of the license to authorize KFDC to offer child care in the evening, but HRS denied the request. When KFDC closed for the day, children still there were taken to the Acosta home. A "couple of times," (Hoffman Deposition, p.9) Joe Acosta drove the van to the Acosta home after KFDC closed with as many as four or five children who were to be cared for there, id. 9, 56, "and Debra would stay and close up." Waller Deposition, p.14. Twice Mr. Acosta was alone with the children when Stacy Stowell collected her sons, Matthew and Aaron, at KFDC. T.12. But Lynn Hoffman, an employee, was never aware of his being alone with children. Hoffman Deposition, p.11. Nor was Julie Ann Merrill, who worked at KFDC from September to December 1990. Merrill Deposition, p.5, 20-21. It rarely happened. The morning after a fire at the Acosta home, Ms. Acosta sent Mr. Acosta to open up KFDC, and he was present when at least one child arrived, before either Ms. Acosta or Vicki Waller got there. Sole Supervisors Under Age and/or Uncertified When Vicki Waller, then 19 years old, began working for KFDC, neither she nor the Acostas were aware of the HRS rule forbidding leaving the children in the unsupervised care of anybody under 21 years of age. The three of them learned of the requirement in a 20-hour course they took together in the fall of 1990. Before that time, Ms. Waller had been left in charge mornings "from about 7:00 to 7:30," (Waller Deposition, p.6) and all day on one or two Saturdays. She was not left in charge after they learned of the rule against it. Ms. Waller did not have first aid or CPR certification when she took sole responsibility for children at KFDC. Chris Fitzpatrick worked as the only person caring for children at KFDC one Saturday, although she had not yet taken the first aid course she had signed up for. She also lacked CPR certification. Similarly untrained and uncertified, Denise Carla Yates had charge of the children by herself sometimes on Saturdays. Robin Lynn Bedmar was the only person responsible for the children on two or more Saturdays, even though her CPR certification had expired. Sometimes Sandra Lynn Hoffman, who did not have CPR training, was responsible for children at KFDC by herself, or shared responsibility only with Ms. Waller. Chris Fitzpatrick, Denise Caren Yates, Robin Lynn Bedmars and Sandra Lynn Hoffman were 21 or older, as far as the record shows, when they were left alone with the children. Occasionally Substandard Supervision Until a refrigerator was installed in the infant room, the worker supervising infants left them unattended in order to get milk from the kitchen. Similarly, in order to change an older (but disabled) child's diapers, the person responsible for his age group left his peers unattended to take him to a mat in another room. Sometimes only one KFDC employee supervised more than six infants for a full day. On at least four occasions, and possibly on as many as eight occasions (T.71; Waller Deposition p.9) there were more than six babies in the infant room, which had six cribs and two pallets, even after the playpen was removed at HRS's behest. T.71. Towards the end of the day infants along with older children, sometimes aggregating as many as ten or more, were left in the care of a single KFDC employee. Children played outside, sometimes without adult supervision. Twice, Jason Acosta was outside with children at KFDC "sort of keeping an eye on things while," (Waller Deposition, p.10) his mother was inside with other children. Respondent once asked Jason and Joseph to stay in the baby room with the children there. T.44. Hygiene The parents of two children complained to Ms. Acosta that their children's diapers were dirty when they picked the children up; and the grandmother of a third testified that, at least twice a week, he had "poopy pants" (T.30) when she came for him at KFDC, or at least by the time she had driven him some ten minutes away. Generally, children at KFDC with soiled diapers got fresh ones promptly. Ms. Acosta had extra diapers and clothes for the children on hand. Nutrition For every day a child who ate lunch failed to bring his own, KFDC charged his or her parents a dollar. But some or all of the food supplied these children came from the lunch bags sent with other children. Ms. Acosta or an employee opened the bags and divided the food onto plates without regard to the intended recipients' (or their parents') desires. Mornings and afternoons snacks were almost always provided to the children, but food with which to prepare snacks was occasionally unavailable to staff. The menu sometimes posted at KFDC was not always followed. Once, after two or three children drank from the same glass, respondent refilled it and gave it back to a child, perhaps unaware of its history. Before she obtained the KFDC license, Ms. Acosta registered her home as a family day care center, and the home was inspected by the fire department. T. 497. After her licensure, as before, Ms. Acosta cared for Kyle Dunbar, who has cerebral palsy, at her house, while his mother worked evening shifts. BreAnn's mother, Paige Kelso, also worked nights and left her child in respondent's care when she did. Respondent charged for taking care of these children and sometimes had them both in her home at the same time. Friends of her children spent the night sometimes, and she occasionally took care of a friend's two sons as a favor. Other Matters Ms. Acosta conducted several fire drills at KFDC but sometimes "the month would go by . . . [without one] and then she would write it in" (Waller Deposition, p. 58) anyway, as if one had actually occurred. T.113. Infants were not removed, even when fire drills did take place. Id. Whether falsified records of fire drills were ever submitted to HRS is not clear. Ms. Acosta and others on the KFDC staff relied on "time outs" as their principal disciplinary method. But Ms. Acosta once swatted a little girl's behind. The witness who testified to this incident also testified, "I'm not saying that the child did not like Debra [Acosta, the respondent] or was scared of Debra." Waller Deposition, p. 61.
Recommendation HRS proved several significant violations. But HRS did not prove, or even allege, that respondent's husband sexually abused a child or children. Instead, HRS alleged and proved that such allegations are the basis for pending criminal and (other) administrative proceedings. It is, accordingly, RECOMMENDED: That HRS suspend respondent's day care center license for one year, with credit for the time already elapsed in which HRS has prevented respondent from operating a day care center. That HRS place respondent's license on probation thereafter for a period of at least two years, on condition that respondent comply with all applicable statutes and rules for two years; on condition that respondent not charge for children she cares for at her home; and on condition that Mr. Acosta stay off KFDC premises while children other than his own are there, and have no contact with children who are cared for at KFDC (other than his own), until and unless he is exonerated in both the criminal and administrative proceedings now pending. DONE and ENTERED this 22 day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 3, 4, 5, 6, 7, 10, 11, 12, 13, 17, 20 and 26 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, KFDC was licensed earlier than January 1, 1991. With respect to petitioner's proposed finding of fact No. 8, the court order was not in evidence. With respect to petitioner's proposed finding of fact No. 9, the substance is addressed in later proposed findings of fact. With respect to petitioner's proposed findings of fact Nos. 14 and 15, the evidence did not show routine noncompliance. With respect to petitioner's proposed finding of fact No. 16, this occurred only rarely. With respect to petitioner's proposed finding of fact No. 18, it was not clearly and convincingly shown that the screening had not be completed. With respect to petitioner's proposed finding of fact No. 19, it was not clearly and convincingly shown that the children received less than what was nutritionally necessary. Petitioner's proposed findings of fact Nos. 21, 23 and 24 were not proven. With respect to petitioner's proposed finding of fact No. 22, it was not clear that respondent "extended her day care license to her home without authority" as opposed to acting in good faith under supposed authority antedating issuance of KFDC's license. Vicki Waller did not see all those children at the same time, as far as the record shows. With respect to petitioner's proposed finding of fact No. 25, the credible evidence did not clearly and convincingly establish any improper discipline other than the swat. With respect to petitioner's proposed finding of fact No. 27, the violation consisted only of being in the presence of his own children. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 9, 11, 12, 14, 15, 17, 18 and 20 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 7, an adult was inside when the boys were asked to watch the infants, but no adult was outside three or more times when one of the Acosta sons supervised. With respect to respondent's proposed finding of fact No. 8, noncompliance with ratios was sometimes more than momentary. With respect to respondent's proposed finding of fact No. 10, diapers were changed regularly. With respect to respondent's proposed finding of fact No. 13, morning snacks were not always given. With respect to respondent's proposed finding of fact No. 16, children whose parents did not pick them up at KFDC were also brought to the Acosta home. With respect to respondent's proposed finding of fact No. 19, no improper discipline other than a single swat was proven. With respect to respondent's proposed finding of fact No. 21, this is properly a conclusion of law. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 S. J. DiConcilio, Esquire Rodney M. Johnson, Esquire P.O. Box 8420 Pensacola, FL 32505-0420 Mary Koch Polson, Esquire P.O. Box 96 Fort Walton Beach, FL 32549
The Issue The issue to be resolved in this proceeding concerns whether violations of Sections 402.305 and .310, Florida Statutes, and Section 65C-22.001, Florida Administrative Code, have been committed with regard to the care of children at the Petitioner's facility, such that its license should be revoked or other penalty imposed.
Findings Of Fact The Petitioner Gwendolyn Gobler was licensed to operate a daycare facility called Discovery Christian Learning Center, by the Department of Children and Family Services (Department) from August 13, 2001 through August 12, 2002. The Petitioner has a Bachelor's degree in early childhood education and has had a license for a family daycare home or center since sometime in 1998. Discovery Christian Learning Center, the subject facility, is located in St. Augustine, Florida at Number 260, State Road 16. State Road 16 is a busy four-lane highway in St. Augustine connecting Interstate 95 to downtown St. Augustine. On the day in question, January 17, 2002, an insurance agent Bill Matetzsck and his passenger, Ms. Lee Stec, were traveling on Highway 16 in the outer-left lane when they observed two children playing near the street on the outside of the Petitioner's facility. The children, a boy almost aged two and a girl aged two and one-half were playing on the sidewalk throwing leaves in the gutter. The little boy was observed to step into the highway while chasing leaves. Mr. Matetzsck stopped his car after observing the children and Ms. Stec retrieved them before they could be hit by a car and took them back into the facility. Ms. Stec became somewhat upset about the discovery of the children outside of the facility and immediately called the police, local television stations, the Florida Times Union Newspaper and waited for the police to arrive. Mr. Matetzsck observed that the double gate on the side of the property in the area of the backyard had a chain wrapped around it, but there was no lock on the chain. The Petitioner acknowledged to the law enforcement officer who investigated the incident that, although chained, the gate had not been properly fastened or secured. During that same time period Ms. Stec had also made a call to the Department of Children and Family Services reporting the incident. This triggered an inspection and investigation by the Department. Carmen Baselice is a Family Services Counselor assigned to St. John's County. The territory of her regulation and inspection of child care facilities includes the Discovery Christian Learning Center operated by the Petitioner. Ms. Baselice's duties include regulating and inspecting child care facilities and family daycare homes. Ms. Baselice initiated her investigation into the complaint by visiting the Discovery Christian Learning Center and discussing the complaint with Ms. Gobler. Ms. Gobler had noticed that the children were missing from her playground in the backyard and had just gone inside to see if they had gone back in the house at the time the children were being brought inside from the front of the house by Ms. Stec. Ms. Baselice observed that the front door of the facility was not properly fastened due to tape being placed around the doorknob locking mechanism. The door could only be locked by use of a deadbolt. Ms. Baselice felt at the time that the children may have exited the facility by that door. Ms. Gobler, however, stated that the only possible way that the children could have gotten out was by the gate which she acknowledged was not properly fastened. On January 17, 2002, Ms. Baselice received another complaint from a parent who was concerned that it was her child who had gotten out of the facility. The parent was concerned because her own child had gotten out of the facility by the front door in December 2001. Ms. Baselice reviewed the complaint with Ms. Gobler who confirmed that the child had gotten out of the facility by way of the front door by turning the deadbolt, but that she had apprehended the child while the child was still on the front porch and returned her to safety inside the house. On January 8, 2002, before the incident with the two children, Ms. Baselice conducted an annual renewal inspection on the facility. She observed an infant in a crib unattended and the facility "out-of-ratio" for more than thirty minutes. Out of ratio means that there was an insufficient number of staff members for the number of children being kept at the facility. On this occasion there were four children being kept, as well as the infant asleep in the crib in the infant room. Ms. Gobler was the only person present at the time of this inspection, on January 8, 2002. Thirty minutes later the second worker came on duty. The thirty-minute delay in being properly staffed was caused by that worker having a flat tire on her way to work. Ms. Gobler was attending to the toddlers in the larger room and the infant was asleep in the crib in the adjoining infant room, a separate room. However, it is also true that Ms. Gobler had the infant in plain sight from her station in the room with the four other children and could hear the infant through the open or sliding door. Through her testimony, and through Respondent's Exhibit two, in evidence, Ms. Baselice established that Ms. Gobler had a long history of incidents investigated and inspected by the Department and a substantial number of attendant violations. The incidents reported in Respondent's Exhibit two and in Ms. Baselice's testimony began prior to 1998 and there was a history of non-compliance which continued to the present time. During these years Ms. Gobler operated in disregard of the law in a number of instances, either by non- compliance with specific regulatory requirements concerning how her child care facility operated or was equipped, or without licensure in all instances. When the violations were cited she would often correct the immediate problem but later repeat the same type of violation. Many of the violations in her regulatory history are germane to child safety. The subject violations involving the children escaping form the home obviously are directly and dramatically involved with child safety. The little boy in question was about to get into the street and was barely missed by an oncoming car when Ms. Stec retrieved him. Those repetitive violations in the past are referenced in Respondent's Exhibit two and are incorporated herein by reference.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services revoking the Petitioner's license. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 3rd day of October, 2002. COPIES FURNISHED: Gwen Gobler, pro se Post Office Box 1122 Ponte Vedra, Florida 32004 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the decision of the Department of Children and Family Services (Respondent) to revoke the license of Martha Taylor (Petitioner) to operate a large family child care home is appropriate.
Findings Of Fact Petitioner is licensed to operate a large family day care home, located at 14019 219th Lane, Live Oak, Florida. Her license to provide child care dates from 1998. Jimmie P. Taylor is Petitioner's husband. He lives in the home where Petitioner operates the large family day care facility. Taylor is disabled and does not work outside the home. He is home during the day and has unsupervised access to the children in the large family child care home. On June 3, 2002, Respondent's protective services investigator contacted Deputy Sheriff Wayne Musgrove of the Suwannee County Sheriff's Department. The investigator had received an anonymous report that Petitioner's husband was the perpetrator of a verified report of child abuse. On June 4, 2002, Musgrove interviewed Taylor. Petitioner's husband admitted that in 1987, while Petitioner and her daughter were living in his house in Pinellas County, Florida, he had fondled Petitioner's then 16-year-old daughter in her genital area and that the daughter had fondled his genital area and "masturbated him." He and Petitioner were not married at the time. While the investigation in 1987 resulted in a confirmed report of child abuse, naming Taylor as perpetrator, no other legal consequences befell Taylor because Petitioner's daughter recanted her previous admissions in a circuit court proceeding regarding the matter. Later Taylor and Petitioner's daughter received counseling and today, according to Petitioner and Taylor, enjoy a normal relationship. Respondent's policy is never to license an individual to conduct a family day care business where an abuse perpetrator resides in the same home. Other than denying licensure, Respondent has no means to lessen or remove a threat to children in such a situation since unsupervised contact by such a person with children in the home is possible. In fact, Petitioner would not have received a license in 1998 had Respondent's representatives known about the 1987 confirmed report.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered confirming the revocation of Petitioner's license to operate a large family child care home. DONE AND ENTERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 4th day of November, 2002. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Martha R. Taylor Country Air Childcare Home 14019 219th Lane Live Oak, Florida 32060-5336 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue 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
