The Issue The issue in the case is whether the registration of Thorpe Lindsay's family day care home should be revoked.
Findings Of Fact The Department is responsible for the registration and supervision of family day care homes, pursuant to Section 402.313, Florida Statutes (2007). Respondent, Thorpe Lindsey, has been registered to operate a family day care home at 2306 Savoy Drive, Orlando, Florida, since December 18, 2006. 3. On June 27, 2007; July 13, 2007; and July 26, 2007, Respondent allowed an unscreened and unapproved substitute, Sheneka Henderson, to be alone with and supervise children in the family day care home. Respondent was not present in the home on at least two of these occasions. On all three occasions, Respondent appeared after the Department's protective investigator or child care licensing supervisor noted his absence and the presence of Ms. Henderson as the caregiver.2 On July 13, 2007, Respondent was cautioned in person about the repercussions of allowing unscreened personnel to supervise children. On September 14, 2007, the Department issued an Administrative Complaint against Respondent, seeking to impose a civil penalty in the amount of $500.00 for the three instances of using an unscreened and unapproved substitute caregiver. Respondent refused to accept service of the Department's certified letter. The copy of the Administrative Complaint sent by regular U.S. Mail was not returned to the Department, and Respondent never sought a hearing or otherwise contested the allegations of the Administrative Complaint. Aside from the problem of unscreened personnel, Respondent also had a recurring problem of caring for a number of children greatly in excess of the ratios allowed by statute in his family day care home. Under any circumstances, a family day care home may provide care for no more than ten children. See § 402.302(7), Florida Statutes (2007). On June 27, 2007, the Department sent a certified letter to Respondent noting that on the previous day, the Department had received a report that Respondent was caring for between 30 and 40 children. The letter cautioned Respondent that he must immediately reduce enrollment and submit a written plan to the Department by July 10, 2007, identifying the names and birth dates of the children for whom Respondent would continue to provide care, as well as the names and birth dates of the children whom Respondent eliminated from his roster. Respondent never provided the required documentation to the Department. The Early Learning Coalition of Orange County is a public/private partnership established to ensure that children enter school ready to learn. In coordination with the Department, the Early Learning Coalition provides health and safety inspections for anyone receiving school readiness funding. Because Respondent received such funding, Eric Allen, an inspector for the Early Learning Coalition, made regular visits to the family day care home. On July 6, 2007, Mr. Allen made a routine visit to Respondent's home and found several violations, including a ratio violation, the presence of unscreened volunteers caring for children, chemicals under kitchen and bathroom sinks without door locks on the cabinets, and uncapped electrical outlets. On July 9, 2007, the Early Learning Coalition sent a letter to Respondent outlining the violations and requiring their correction pending a re-inspection of the family day care home. On July 20, 2007, Mr. Allen conducted a routine visit to Respondent's home and again found the home to be out of ratio. On July 26, 2007, the Early Learning Coalition sent a letter, signed by Donna J. Williams, director of quality services, to Respondent that stated the following, in relevant part: This letter will clear up any confusion as to the number of children you are legally allowed to care for. As a family home provider, six (6) is the maximum number of children under the age of five you are allowed to have in care at one time. If an infant is present, the maximum number of children allowable at one time is five (5). I am enclosing the state ratio chart so you may be clear on the number and age of children you are legally allowed to have in your care at one time. Since this falls under our Non-compliance Policy, you are hereby on notice that if there is any other incident where you are found in non-compliance with any Level I violation, the parents of school readiness funded children will be contacted and given the opportunity to transfer as you will be ineligible to receive school readiness funds for a period of one year. On September 7, 2007, at approximately 3:45 p.m., Mr. Allen again visited Respondent's registered family day care home. Mr. Allen found a note on the front door stating, "We are on a field trip," with contact information for parents at the bottom. Mr. Allen noted that the contact numbers on the note did not match the contact information on file at the Early Learning Coalition. He also noted that all of the windows of the house were covered with blinds or cardboard. Mr. Allen testified that he had made several prior attempts to visit the home in recent days, but that on each occasion was met with a note claiming the children were out on a "field trip." He was about to walk away from the house when he heard a baby crying inside. He rang the doorbell and knocked on the door but received no response. He called out to whomever was inside the house, "This is Eric from the Early Learning Coalition. I can hear a baby crying. You need to open the door or you are violating your provider agreement and you are in danger of being de-funded." There was still no response from inside the house. Mr. Allen walked around to the back door. He knocked on the window of the rear childcare area and repeated his warning. After several minutes, a car pulled up to the home. A woman got out of the car and approached the front door. Mr. Allen asked if she was there to pick up a child, and she answered affirmatively. She rang the doorbell but no one answered. Mr. Allen offered to call the contact number, but the woman just turned and drove away. Mr. Allen called the Early Learning Coalition's office and asked the administrative assistant to verify and call the contact number for Respondent's home. When the assistant called the number, a woman who identified herself as Respondent's sister answered and stated that the children were out on a field trip. Mr. Allen then called the contact number and asked Respondent's sister where the children were. She stated they were on a field trip to Pizza Hut. Mr. Allen told her he could hear a baby crying inside and that if the door was not opened he would call the police. Respondent's sister hung up the phone. Just as Mr. Allen's phone conversation concluded, approximately 25 minutes after he first arrived at the house, the woman in the car returned. As the woman walked up to the front door, the door was opened by Toshiba Lindsey, another of Respondent's sisters, who was holding a baby she said was her son. Mr. Allen showed Ms. Lindsey his identification and asked her why he had been left outside trying to get someone to open the door for nearly a half hour. Ms. Lindsey claimed to have been sleeping and not to have heard the knocking. Mr. Allen entered the home and started down the hallway, but Ms. Lindsey forbade him from entering one of the rooms. Mr. Allen could hear a child crying inside the room. He demanded to know whose child was behind the door. Ms. Lindsey denied there was anyone in the room. For several minutes, Mr. Allen attempted to convince Ms. Lindsey to open the door, but she continued to say that she could not open it. Mr. Allen told her to call Respondent, who was not in the house. Mr. Allen spoke to Respondent and told him that he would call the police if Ms. Lindsey did not open the door. Respondent hung up on him. Mr. Allen called 911 and requested an officer to come to the house and open the door. A moment later, the door to the room opened and another woman, Sheneka Henderson, emerged with 13 children. Neither Ms. Lindsey nor Ms. Henderson had been background screened or trained to act as caregivers. Mr. Allen recorded the names and ages of the children, then left the home. Respondent never showed up at the house while Mr. Allen was there. On September 10, 2007, the Early Learning Coalition sent Respondent a letter notifying him that he would be ineligible to receive school readiness funds for a period of one year, based on Respondent's repeated violations of mandatory state ratio requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order revoking the registration of Thorpe Lindsey to operate a family day care home. DONE AND ENTERED this 10th day of April, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2008.
The Issue Was Petitioner properly disqualified from working in a position of special trust pursuant to Section 435.04, Florida Statutes, on the basis of a July 21, 1996, incident? If Petitioner was properly disqualified as a result of the July 21, 1996, incident, has she been sufficiently rehabilitated so as to be eligible for an exemption to work in a position of special trust, pursuant to Section 435.07(3), Florida Statutes?
Findings Of Fact Petitioner was licensed through Leon County as a family home day care provider in 1995. Since 1996, she has been operating her family day care home pursuant to an exemption from disqualification by a 1973 disqualifying felony (manslaughter). Petitioner is a high school graduate. She was schooled and certified in New York as a nurse technician. She is certified as a home health aide in Florida. When she sought to renew her license in 2000, Petitioner was required to sign an Affidavit of Good Moral Character. The 2000 Affidavit of Good Moral Character read: By signing this form, I am swearing that I have not been found guilty or entered a plea of guilty of nolo contendere (no contest), regardless of the adjudication, to any of the following charges under the provisions of the Florida Statutes or under any similar statute of another jurisdiction. I also attest that I do not have a delinquency record that is similar to any of these offenses. I understand I must acknowledge the existence of criminal records relating to the following list regardless of whether or not those records have been sealed or expunged. I understand that I am also obligated to notify my employer of any possible disqualifying offenses that may occur while employed in a position subject to background screening under Chapter 435, Florida Statutes. The 2000 Affidavit then listed a number of offenses and the corresponding statute numbers. Among the offenses listed were: Sections 741.30 domestic violence and injunction for protection. 784.03 battery, if the victim was a minor. The 2000 Affidavit is DCF's attempt to paraphrase Section 435.04, Florida Statutes, listing disqualifying offenses. It is flawed and could be misleading because domestic violence can occur without an injunction for protection. Petitioner signed the 2000 Affidavit on January 25, 2000, in the portion declaring herself free of any disqualifying statutory violations and also signed the Affidavit in the portion stating, "To the best of my knowledge and belief, my record may contain one or more of the foregoing disqualifying acts or offenses." Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident on her 2000 Affidavit because she did not think it constituted domestic violence, but why she signed contradictory statements was not explained. Petitioner's day care license was renewed, despite Petitioner's contradictory declarations on her 2000 Affidavit. She was notified of her disqualification when the five-year background screening turned-up an offense that had occurred on July 21, 1996. The Year 2000 background screening results which DCF received from the Florida Department of Law Enforcement indicated that Petitioner had been found guilty of "battery," on the basis of the July 21, 1996, incident. The Department's Background Screening Coordinator then obtained additional documentation from the file of the Leon County Court. Based on the information in the court file, the Department's District II Office concluded that Petitioner was disqualified because of a "domestic battery" offense. Petitioner exhausted informal procedures and timely requested an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes (2000). The instant case followed. The instant case is the second occasion Petitioner has appeared before the Division of Administrative Hearings requesting an exemption from disqualification to work in a position of special trust. The first occasion Petitioner appeared before the Division occurred in September 1996, when she sought an exemption because she had been disqualified due to her 1973 felony manslaughter conviction in New York. Petitioner had failed to disclose the 1973 felony conviction on her 1995 affidavit when she first applied to be a child care worker.1 That disqualifying offense showed-up in the initial screening procedures applicable to such applicants. Petitioner was granted an exemption for the 1973 manslaughter conviction in Harris v. Department of Health and Rehabilitative Services, DOAH Case No. 96-2010 (Recommended Order entered September 10, 1996; Final Order entered October 30, 1996), as more fully described below in Findings of Fact 34-36. She has been a licensed day care provider ever since. In 1996, Petitioner and Frank Fields had a romantic involvement bounded by Mr. Fields' keeping most of his belongings at his sister's apartment and merely sleeping over at Petitioner's home two to three nights per week, on a sporadic basis.2 On these occasions, he brought with him, and occasionally left in Petitioner's home, only his underwear and some music CDs. At all times material, Frank Fields was an adult male. Although younger than Petitioner, he was not a minor. On July 21, 1996, Petitioner, who was then 47 years old, was two months' pregnant with Frank Fields' child. She testified that at that time she was very upset and confused because of her pregnancy; because Mr. Fields was not helping with household expenses; and because she had heard that Mr. Fields was moving from his sister's apartment to an apartment of his own. On July 21, 1996, Petitioner was driving her car on Blountstown Highway. She noticed Mr. Fields' van and also noticed that there was a female in the passenger's seat of the van. Apparently, Petitioner believed that Mr. Fields was romantically involved with his female passenger. Petitioner had one adult daughter; the adult daughter's three children, all under the age of nine years, and her own eight-year-old daughter with her in her car. According to Petitioner's testimony, none of the four children in her car were young enough to require a car seat and none of her day care children were in her car. According to the police officer who later arrested Petitioner, there were six "children" in the back seat of Petitioner's car, not six people in the whole car. Regardless of this discrepancy in testimony, it is undisputed that there were no car seats and insufficient car safety belts for the number of passengers in Petitioner's car on July 21, 1996. Without approving either Petitioner's motivation or her reasoning, I find credible her testimony that she would not have taken her next actions had there been any day care children in her car because if day care parents found out about it, Petitioner could be "put in jeopardy"; she "could be in a lot of trouble"; and she would not have had day care children with her over a weekend. July 21, 1996 was, in fact, a Sunday. In making the immediately foregoing Finding of Fact, I have not overlooked Ms. Brantley's testimony that on occasion Petitioner has kept Ms. Brantley's children in Petitioner's home on nights and weekends while Ms. Brantley traveled. However, even assuming arguendo, but not ruling, that six rather than four children were in Petitioner's car on July 21, 1996, there is no direct evidence that any of them were also day care clients. Petitioner drove her car, filled with passengers, following Mr. Fields' van. Mr. Fields turned onto Nekoma Lane and pulled over to the side of the road. Petitioner pulled over and intentionally bumped her car into the back of Mr. Fields' van. Petitioner and Mr. Fields exited their respective vehicles, and Petitioner demanded to know who Mr. Fields' female passenger was, even though Petitioner knew the passenger was named "Melissa." Some screaming ensued, and Petitioner and Mr. Fields "tussled," hitting and scratching each other. Petitioner and her adult daughter testified that they did not know who struck the first blow. The non-hearsay evidence is insufficient to establish that on this occasion Petitioner left a bite mark on Mr. Fields' arm. When Mr. Fields began to wield a stick he had picked up from the side of the road, Petitioner's adult daughter got between him and her mother. Petitioner then drove her car, still containing its passengers, so as to follow Melissa, who had walked around the corner. Petitioner then "had a conversation" with Melissa. There is no evidence that the children were anywhere except inside Petitioner's car during either her confrontation with Mr. Fields or with Melissa. When the police arrived on the scene, Petitioner was arrested for battery and for driving with a suspended driver's license. The suspended license charge arose because, when questioned by the police, Petitioner gave her name as "Veronica L. Wynn." Petitioner's legal name was, in fact, "Veronica Harris." Petitioner also told the officer that her date of birth was September 19, 1959, and that she lived at 2106 Monday Street. Petitioner's true date of birth is September 19, 1949, and her true address was 1229 Elberta Street. When the officer could not find a driver's license record for "Veronica L. Wynn," Petitioner told him that the name on her license might be "Veronica Lee Harris Wynn." After she gave him the name "Veronica Lee Harris Wynn," the officer found Petitioner's driver's license record and learned that her driver's license had been suspended. Petitioner had recently been divorced and had "gone back" to her maiden name, but she testified herein that on July 21, 1996, she deliberately gave incorrect information to the police because she knew her driver's license was suspended and the police were going to check on it. Mr. Fields was provided with a pamphlet explaining his right to request domestic abuse protection and prosecution. Apparently, he did nothing about it. Petitioner was charged, in an Information which recited the statutory language of both Subsections 784.03(1) (a) and (b), Florida Statutes (1995), with "battery (M1)," meaning "first degree misdemeanor battery." The Information cited only "Section 784.03, Florida Statutes," for that offense. The Information also charged Petitioner with "driving while license suspended or revoked (M2)" also a misdemeanor, under Section 322.34(1), Florida Statutes (1995). On August 28, 2000, Petitioner entered a "no contest" plea to both charges. Petitioner was adjudicated guilty of misdemeanor battery and was ordered to serve 12 months of probation with the following conditions: (1) no contact with Frank Fields; (2) $155.00 court costs; and (3) $100.00 fine. She was also required to pay a monthly supervision fee while on probation and a fee for the services of the public defender. There was no charge, plea, or sentence stating "domestic violence" or citing a domestic violence statute. Petitioner was not required to attend a batterers' intervention program, pursuant to Section 741.281, Florida Statutes. No evidence was presented to show that the sentencing court had made written, factual findings that attendance at a batterers' intervention program would be an inappropriate condition for her probation. Petitioner's probation was terminated in December 1997. Petitioner miscarried her child conceived of Frank Fields before a live birth. Petitioner's emotional connection with Mr. Fields seems to have terminated with the July 21, 1996, incident. At the September 9, 1996, formal exemption hearing in Harris v. Department of Health and Rehabilitative Services, DOAH Case No. 96-2010 (see Finding of Fact No. 12) Petitioner and her witnesses did not divulge that six weeks earlier, on July 21, 1996, Petitioner had been arrested for her altercation with Frank Fields or that less than two weeks earlier, on August 28, 1996, Petitioner had pled "no contest" to battery of Frank Fields. Petitioner testified in the instant case that she did not divulge the July 21, 1996, incident during the 1996 formal exemption proceeding before the Division because "it was not part of my day care home and had nothing to do with day care children."3 The Recommended Order in DOAH Case No. 96-2010 observed that "Petitioner, now a grandmother, testified tearfully to her errant behavior at the age of 21, over 24 years ago in New York. Petitioner has never been charged with any legal violation since that time, with the exception of traffic tickets . . .since the [1973] incident, . . . Petitioner has lived an exemplary life . . . ." That Order recommended granting an exemption. The outcome of the Final Order, entered October 26, 1996, was that Petitioner was exempted from the 1973 felony disqualification.4 Petitioner contends that she never committed "domestic violence" and even if she did, she has been "rehabilitated" since July 21, 1996. She feels that she should be granted an exemption because she is sorry for what she did; because if she had been thinking, she would not have done it; and because she loves her day care children. Since 1996, Petitioner has operated her family day care home and has pursued her goal of becoming a Master Provider of day care. In order to become a Master Provider, one must have taken the Second Helping Course (a refresher course for experienced day care providers); have either a Child Development Associate Certificate or national accreditation; and have five years' experience. Currently, there are only two Master Providers in Leon County. In 1998, Petitioner received a $500.00 Caring for Kids Mini-Grant which she used to purchase day care toys. In March 2000, Petitioner received a scholarship from the T.E.A.C.H. Early Childhood Project, which she had planned to use to take classes at Tallahassee Community Hospital towards her Child Development Associate certification. Petitioner has put this project on "hold" during the pendancy of the instant case. In May 2000, Petitioner completed the Second Helping Course. In Leon County, only approximately 20 family home day care providers have taken this course. In 2000, Petitioner received a $275.00 Caring for Kids Mini-Grant which she used to help pay for her Second Helping Course. Petitioner was selected to receive a Kids Incorporated Infant/Toddler Initiative Grant of $3,000, which she intended to use to purchase toys and equipment for her day care home. Petitioner was hand-picked by Kids Incorporated because of her genuine love and concern for the children and because Kids Incorporated felt that Petitioner only needed additional toys and equipment in order to improve her day care home. However, because of the instant case, Kids Incorporated has not yet disbursed this money to Petitioner. Kids Incorporated wants to be assured the money will go to someone who will be a day care provider for the long-term. Petitioner has volunteered for the school readiness program sponsored by Kids Incorporated, which has resulted in additional visits and evaluations of her day care home. Her day care children have all scored "above average" in the program. Katherine Schmidt, a Family Child Care Specialist with Kids Incorporated, testified that she has evaluated and assessed Petitioner's day care home in her capacity with Kids Incorporated and during the period she was helping Petitioner obtain the grants mentioned above. Ms. Schmidt believes Petitioner is an excellent day care provider and would not be a danger to the children in her care. Ms. Schmidt also believes Petitioner would be a benefit to the children and their families. The Leon County Home Day Care Providers Association and Support Group meets monthly, and Petitioner regularly attends. Two day care providers wrote letters in support of Petitioner. Cicely Brantley is a professional music education teacher in Leon County's public school system. Ms. Brantley's two children attend Petitioner's family day care home. She has seen Petitioner briefly at least five days per week for the last two years. Ms. Brantley's older child is two and one-half years old and has been in Petitioner's day care home since he was nine months' old. Her younger child is 15 months old and has been in Petitioner's day care home since she was eight weeks old. Ms. Brantley testified that she trusts Petitioner with her children and that she trusts and values Petitioner's judgment when it comes to the children. Ms. Brantley often asks Petitioner's advice about parenting, discipline, and health issues involving her children. Ms. Brantley testified that other than her husband, Petitioner is the person she trusts the most with her children and that Petitioner goes above and beyond what most day care providers would do, both in education and care. Ms. Brantley was aware of the battery incident that occurred between Petitioner and Mr. Fields, but it did not change her opinion of Petitioner. She does not believe that Petitioner would ever be a danger to her children. Ms. Brantley really does not want to have to find other child care if Petitioner is unsuccessful in getting an exemption, and it is apparent that this concern has influenced her testimony. Versee Hoffman is a Pioneer with the Jehovah's Witnesses. This means that she has committed to serving 70 hours per month with her ministry. Ms. Hoffman met Petitioner approximately five years ago through church. Ms. Hoffman and Petitioner studied the Bible together periodically. At that time, Ms. Hoffman felt that Petitioner was not really committed to the church or its moral standards, and their studies ended. Thereafter, Ms. Hoffman did not see Petitioner for approximately two years. In early 1999, Petitioner approached Ms. Hoffman and told Ms. Hoffman that she wanted to renew their Bible studies. Ms. Hoffman agreed, and they have been studying the Bible together weekly ever since. Ms. Hoffman testified that the Jehovah's Witnesses expect their members to attend five weekly meetings and that Petitioner consistently attends those meetings. Ms. Hoffman testified that Petitioner has grown spiritually and personally since Ms. Hoffman first met her five years ago. Ms. Hoffman believes that Petitioner is truly committed to leading a spiritual life and to meeting the Jehovah's Witnesses' moral standards against violence. Ms. Hoffman believes that Petitioner will continue to meet these standards.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order determining that Petitioner is not disqualified from working in a position of special trust solely on the basis of her 1996 battery conviction. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 13th day of November, 2000.
The Issue Should Respondent’s annual renewal of her family day care home registration be denied?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida with whom a family day care home must register annually if that family day care home is not required to be licensed by the Department or the county within which the family day care home is located. Annie P. Smith owns and operates Smith Family Day Care Home, which is located in Highlands County, Florida. Respondent is not required to be licensed by the Department or Highlands County but must register annually with the Department. On or about October 28, 1999, Respondent applied to renew her annual family day care home registration. On or about November 10, 1999, the Department screened Florida Abuse Hotline Information System (FAHIS) which revealed report number 1998-094609, an alleged report of child abuse or neglect filed against Respondent. FAHIS report number 1998-094609 alleges that while the child D.W.H., aged 6 months, was under the care of Respondent the child received a large bruise on his upper, inside left thigh. The report characterizes Respondent's role as an alleged perpetrator of child abuse. On or about March 29, 2000, the Department received FAHIS report number 2000-050228, alleging that the child, K.L.B. was picked up from Respondent's day family care home with a broken arm. By an Amended Administrative Complaint dated April 28, 2000, the Department advised Respondent that it was denying her application for annual renewal of her family day care home registration. The Department's denial of Respondent's application for renewal of her registration for her family day care home was based on Respondent's: (a) failure to provide satisfactory proof of screening in accordance with Section 402.313(1)(a)5., Florida Statutes; (b) failure to protect and maintain the safety of the child, D.W.H. while the child was in her care; and (c) failure to protect and maintain the safety of the child, K.L.B. while the child was in her care. The Department presented no evidence concerning FAHIS report number 2000-050228 or the alleged abuse of the child, K.L.B. In fact, the Department announced at the hearing that it was dropping Count III of the Administrative Complaint concerning the alleged abuse of the child, K.L.B. After picking D.W.H. up from Respondent's family day care home on August 25, 1998, T.W., the child's mother, transported the child to Heartland Pediatrics of Avon Park for a scheduled appointment with Dr. Deshipande for the child's regular check-up. During the child's examination, Dr. Deshipande, discovered bruises on the inner thigh of the child's left leg. Dr. Deshipande described the bruises as a "large area on (l) inner thigh of bruising in various stages -- dark purple to pink. No tenderness. No other bruises elsewhere." (Emphasis furnished). Dr. Deshipande suspected possible child abuse and instructed one of his staff to notify the Department's abuse hotline. Subsequently, the Department conducted an investigation into the allegations of abuse. Ray Starr, a former Child Protective Investigator (CPI), with the Department, was the person primarily responsible for the Department's investigation and preparation of the abuse report. Starr's testimony that he contacted Respondent during his investigation by telephone concerning the alleged abuse is inconsistent with the abuse report and with Respondent's testimony. The abuse report indicates that Starr talked with Respondent in person concerning the alleged abuse. Respondent testified that neither Starr nor anyone else from the Department talked to her by telephone or in person concerning the alleged abuse during the time of the investigation. After discussing the background of the child's parents with local law enforcement and Department personnel, including one Department employee who was a "good friend" of the child's father, Starr determined that the child's parents were not responsible for the bruises. Without any further investigation (except possibly one telephone call to Respondent) Starr determined that the bruises were either the direct result of Respondent's action with the child or her inattention to the child which resulted in the bruises by whatever means. Starr made no effort to discuss Respondent's reputation as a caregiver with any of Respondent's present or past clients or to determine if there had been any problems with Respondent's care of other children. Based on the testimony of several of Respondent's present and past clients, Respondent enjoys a reputation of being an excellent caregiver for children, particularly younger children. On August 25, 1998, the child's mother, while giving the child's medical history to Dr. Deshipande, indicated that the child had been going to Respondent's family day care home for a period of 12 days and that bruising had been noted once before. However, at the hearing the child's mother testified that she could not recall how long the child went to Respondent's family day care home and that there had been no problem with the child's suffering any bruising at Respondent's day care home prior to the day of the alleged incident. The child's mother could not recall what time she left the child at Respondent's home or picked him up from Respondent's home on the day of the alleged incident or any other day. The child's mother could not recall virtually anything about the incident other than her assertion that she checked her child thoroughly before she took him anywhere and checked him thoroughly after picking him up, which she described as "a mother's thing." Based on this assertion, the mother concluded that the child must have been bruised between the time she left him in Respondent's care on August 25, 1998, and the time she picked him up from Respondent's day care home on August 25, 1998. Karen Babcock, a Licensed Practical Nurse, employed by Heartland Pediatrics of Avon Park saw the bruises on the child on August 25, 1998, while he was being examined by Dr. Deshipande. Babcock testified that although she was not present when the photographs were taken by a Department employee on August 26, 1998, the bruises on the child's leg as shown by the photographs depict a fair and accurate representation of the bruises as they appeared on August 25, 1998. Ray Starr was present when the photographs were taken on August 26, 1998, and testified that the bruises on the child's leg as shown by the photographs depict a fair and accurate representation of the bruises as they appeared on August 26,1998. Dr. Deshipande did not testify at the hearing and, other than his description of the bruises, did not state in his notes an opinion as to when he considered the bruises may have occurred. The fact that he noted bruises "in various stages" indicates that the bruises occurred at various times. Nothing in Ray Starr's testimony or the abuse report indicates that Ray Starr talked with Dr. Deshipande concerning the timing of the bruising. Likewise, none of the other witnesses talked with Dr. Deshipande concerning the timing of the bruising. Dr. Deshipande's description of child's bruises does not describe bruises that are alleged to have occurred earlier in the day on August 25, 1998, during the time the child was in the care of the Respondent. Likewise, the photographs, when viewed in light of Dr. Deshipande's description of the bruising as it appeared to him on August 25, 1998, do not depict bruising that is alleged to have occurred earlier in the day on August 25, 1998, during the time the child was under the care of Respondent. Therefore, although it is clear that the child was bruised, it is not at all clear that the child was bruised during the time he was under the care of Respondent on August 25, 1998, either by Respondent directly or as a result of Respondent's inattention, notwithstanding the testimony of the child's mother to the contrary, which I find lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Respondent's application for renewal of her annual family day care home registration. DONE AND ENTERED this 9th of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2001. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Sidney M. Crawford, Esquire Sidney M. Crawford, P.A. Post Office Box 5947 Lakeland, Florida 33807 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent's registration to operate a family day care home should be revoked.
Findings Of Fact At all times material to the allegations of this case, Respondent, Kathy Stone, d/b/a Stone Family Day Care, was registered by the Department to operate a day care facility in her home located at 272 Southwest Fairchild Avenue, Port St. Lucie, Florida. As part of the registration for such day care home, Respondent was required to complete forms on which Respondent was to identify all members of the household residing at the registered location. Specifically, Respondent was to disclose any person over twelve years of age residing at the home. None of the registration forms completed by Respondent disclosed that an individual named Kevin Schaffer resided at the registered home. On more than one occasion law enforcement authorities were called to Respondent's residence in order to intervene in domestic disputes between Respondent and an individual named Kevin Schaffer. On all such occasions, Mr. Schaffer listed his residence as that of the Respondent's day care home. Mr. Schaffer is a convicted felon. Respondent failed to disclose that Mr. Schaffer was a resident over the age of twelve years residing at the registered day care facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order revoking Respondent's registration as a home day care facility. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sydney L. Schwartz, Esquire Department of Children and Family Services 1436-C Old Dixie Highway Vero Beach, Florida 32960 Katherine Stone, pro se 272 Southwest Fairchild Avenue Port St. Lucie, Florida 34984
The Issue The issue is whether Respondent should approve Petitioner's family day care license application.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Chapter 120.57, Florida Statutes, and the entire record compiled herein, the following relevant and material facts are found: Before December 15, 2000, Petitioner, Freddie Mae Law (Ms. Law) submitted an application for a family foster care license to Respondent, the Department of Children and Family Services (Department). Gloria Mathews (Ms. Mathews), who was at that time assigned to the Department's family foster care license unit, conducted the requisite pre-license investigation and found that Ms. Law met the mandatory requirements and that Ms. Law was qualified for a family foster care license. Based solely upon the results of Ms. Mathews' investigation of Ms. Law's background and qualifications, the Department issued Ms. Law a family foster care license on December 15, 2000. Thereafter, Ms. Law provided family foster childcare service out of her home in Mulberry, Florida. At some undetermined time after December 15, 2000, Ms. Mathews transferred from the Department's family foster care license unit to the Department's family day care license unit where she is currently working. Ms. Law's family foster care license was valid from December 15, 2000 to December 15, 2001, and was renewable on or before its anniversary date. On December 15, 2001, the Department took no action regarding the renewal of Ms. Law's foster home license. With the Department's consent and approval, Ms. Law operated her family foster care out of her home until February 21, 2002, at which time she voluntarily surrendered her foster care license to the Department. For more than eight years before she acquired her "foster care license" Ms. Law worked at the Cornerstone Youth Shelter. This residential shelter home, through contract with the Department, and the Department of Juvenile Justice, accepted referrals of children in need of housing and foster care services. On September 11, 2001, four months before the expiration date of Ms. Law's family foster care license on December 15, 2001, the required renewal investigation was conducted by Cheryl Dishong (Ms. Dishong), who was then a foster care license unit caseworker. Prior to the initial renewal visit by a foster care license unit caseworker, the Department requires the assigned caseworker to secure a copy of a foster care visit report form that contains the names and ages of the foster children in the foster home to be visited by the caseworker. Additionally, caseworkers are required to record the results of their foster care home visit on the foster care visit report form. Uncertain of the time of her prearranged visit with Ms. Law and of her arrival time at Ms. Law's residence, Ms. Dishong recalled arriving at the Law's residence at approximately 3:00 p.m. or 3:30 p.m. in the afternoon. According to Ms. Dishong, Ms. Law was not home upon her arrival, but arrived within five to ten minutes thereafter. During the short five to ten-minute interval before Ms. Law arrived, Ms. Dishong saw several teenaged children walking home from school. Ms. Dishong observed the two teenaged children approach Ms. Law's home, and she spoke with them outside Ms. Law's home. Neither Ms. Dishong nor the children entered Ms. Law's home at that time. Upon Ms. Law's arrival, she and Ms. Dishong entered the home while the two teenaged children stayed outside on the porch. During this visit, Ms. Dishong discussed with Ms. Law her one concern; the five-minute interval between the arrival of the two teenagers home and Ms. Law's arrival home. Ms. Law explained to Ms. Dishong that the one teenage foster child along with her biological daughter attended school within walking distance from their home. The normal family school day routine was for the teenagers to walk to and from school each day. The entire family would leave home together in the mornings and would normally arrive home in the evenings at about the same time Ms. Law arrived home from work. Ms. Law further explained to Ms. Dishong that her family's school day routine consisted of her transporting the younger foster children to school each morning on her way to work and picking them up from school on her way home each afternoon. This routine of a mother transporting young children to and from school each day is a routine of many mothers with young school children. The routine of teenaged children walking home from school and arriving a reasonably short time before their parents arrive home from work is also that of normal families. The Department proffered no rule or known and accepted standard that was violated by the hereinabove Law foster family school day routine. Ms. Law's determination of personally transporting the younger foster children to and from school and her determination that the teenaged foster child and her biological child should walk to and from school do not reflect a lack of supervision nor do they demonstrate faulty decision- making. Ms. Dishong, the Department's chief witness and a foster care license unit relicensure caseworker for three and one-half years, testified exclusively from memory. Her testimony, with exception of her face-to-face conversations with Ms. Law and her several telephone conversations with Ms. Law, consisted primarily of conclusions and generalizations. Ms. Dishong was unable to accurately recall names of specific foster children with whom she allegedly had conversations, and she could not recall specific dates, times, or places. Her recollection of statements allegedly made to her by foster children and other children lacks support and, therefore, lacks credibility. Ms. Dishong's recollection and testimony of statements allegedly made by the several children, foster, biological and others, is unobjected to as hearsay not supported by any other evidence of record and, in itself, cannot support a finding of fact.1 Accordingly, that testimony is disregarded in the preparation of this Recommended Order. On September 21, 2001, Nacara Daniels (Ms. Daniels), the Department's investigator of abuse report 2001-051113, visited Ms. Law's foster care home for an investigation of allegations contained in abuse report 2001-051113. Before her visit to Ms. Law's home, Ms. Dishong told Ms. Daniels of allegations of a lack of supervision and faulty decision-making purportedly contained in three other unidentified abuse reports. On October 9, 2001, and as the direct result of Ms. Daniels' investigation, interview, and discussion with Ms. Law regarding her foster care supervision, the Department entered into a Partnership Development Plan (PDP) agreement with Ms. Law. This partnership agreement and its cooperative working relationship between Ms. Law and the Department's caseworkers are designed to provide foster care that is in the best interest of the foster children. The PDP agreement reduced to writing the Department's agreed acceptance to continue its foster care partnership with Ms. Law and Ms. Law's agreed acceptance to continue working with the Department. Ms. Law complied with the terms and conditions contained in the PDP agreement from the date she signed the agreement on October 9, 2001, to the date Ms. Law voluntarily surrendered her foster care license to the Department on February 21, 2002. On or after October 9, 2001, and after completing her investigation and discussions with Ms. Law, Ms. Daniels closed abuse report 2001-051113 with a finding that allegations contained in abuse report 2001-051113 were uncorroborated. Ms. Daniels recalled, at some unspecified time subsequent to October 9, 2001, sharing her abuse report findings of uncorroborated allegations, the conditions and terms of the PDP, and her abuse report closure status with Ms. Dishong. Before the two-week Christmas break of December 2001, Ms. Law telephoned the Department and spoke to each foster child's caseworker. By mutual agreement between Ms. Law and each caseworker with whom she spoke, a Christmas vacation plan was developed for sharing the daily care and responsibilities for Ms. Law's foster children over the two-week Christmas holiday period. It was agreed that during the two-week 2001 Christmas break, Ms. Law would leave her foster children at the Department's office each morning on her way to work, and she would pick them up from the Department's office each evening on her way home after she finished work. During this two-week Christmas holiday period, Ms. Law continued to provide the foster children breakfast before leaving home each morning, and the Department's caseworkers provided each child with their midday lunch meals. On January 4, 2002, Jayme Sprouse (Ms. Sprouse), a Department investigator, received abuse report 2002-001260. Before her initial visit to the Law family foster care home, Ms. Sprouse reviewed all the information contained in the Department's foster care unit licensing renewal case file. On February 4, 2002, one month after receiving abuse report 2002-001260, Ms. Sprouse spoke with Ms. Law concerning the general allegations to have occurred during an unspecified time span before December 2001 regarding her use of unscreened foster care sitters. This inexplicable month delay is significant in that it evidences the fact that allegations contained in abuse report 2002-001260 did not constitute an immediate danger to the health, safety, and welfare of the foster children in Ms. Law's foster care home. Had abuse report 2002-001260's allegations been sufficient to create an immediate danger or threat to the safety and well-being of the foster children, Ms. Sprouse was required to conduct an investigation on January 5, 2002, within 24 hours after receiving the abuse report on January 4, 2002. Ms. Sprouse inquired of Ms. Law's use of an unapproved foster child sitter. Ms. Law explained to Ms. Sprouse that she had a Department-approved foster child sitter, Chastity Griffin, who sat her foster children and who transported both biological and foster children to outings and entertainment activities. During this period, Ms. Law had also submitted an application to the Department for another approved sitter named Jocelyn (whose last name was not provided in the record) for approval. Not knowing that approval by the Department was required before a sitter could be used to sit foster children, Ms. Law permitted Jocelyn to sit with the foster children during the pendency approval of her foster care sitter application. After February 4, 2002, Ms. Sprouse advised Ms. Law that that the Department had denied Jocelyn's pending sitter screening application. Responding to this information, Ms. Law immediately discontinued the use of Jocelyn as a foster care sitter, evidencing her willing readiness to comply with the Department's requirements once they were made known to her by the Department's staff. After Ms. Law satisfied Ms. Sprouse's concern regarding the use of an unapproved sitter, Ms. Sprouse closed her investigation of abuse report 2002-001260 with a finding of no indicators of inadequate supervision based on the Florida Statute definition of inadequate supervision for abuse purposes. Ms. Sprouse voiced no other concerns regarding Ms. Law's foster care supervision to Ms. Law. After the February 4, 2002, meeting with Ms. Sprouse, the record contains no credible evidence that Ms. Law continued to use unscreened sitters at the foster home or used unscreened persons for any other purposes. Ms. Sprouse shared her abuse report findings of fact and her closure of the abuse report with Ms. Dishong, the case worker assigned the task of the renewal investigation of Ms. Law's foster care licensure process. At no time during the period of September 11, 2001, throughout January 28, 2003, did Ms. Dishong inform Ms. Law that the Department's foster relicensing unit had received, in addition to abuse report 2001-051113 and abuse report 2002- 001260, three additional abuse reports alleging that she inadequately supervised the foster children in her home. Petitioner's Family Day Care Application On or about November 6, 2002, Ms. Law made application to the Department for a family day care license. The November 6, 2002, application is the subject of this de novo proceeding. In December 2000, Ms. Mathews was assigned to the Department's foster care license unit. While there, it was she who approved Ms. Law's foster care license application. In November of 2002, Ms. Mathews was assigned to the Department's family day care license unit. Ms. Mathews again conducted the requisite pre-licensure investigation of Ms. Law's minimum qualifications and criminal background check. For the second time within less than two years, Ms. Mathews again found Ms. Law to have met all statutory requirements and was, therefore, qualified to have a family day care license issued to her. Specifically, Ms. Mathews confirmed that Ms. Law met mandatory minimum standards as required by statute. She visited and otherwise assured herself that Ms. Law's home met minimum standards. She ascertained that Ms. Law had completed 30 hours of childcare training at Polk Community College upon receiving Ms. Law's certificate of completion from Polk Community College. Ms. Mathews was satisfied the Ms. Law's criminal background check found Ms. Law free from any criminal convictions. Ms. Mathews satisfied herself the Ms. Law's substitute family day person was qualified and had completed a minimum of three hours of childcare training as required. Having completed and approved Ms. Law's foster care license application, Ms. Mathews was aware that Ms. Law's long- time employment at Cornerstone Youth Shelter was her sole source of income. Ms. Mathews advised Ms. Law that at the time her family day care license was issued, she would be prohibited from all other employment. To assist Ms. Law in determining the appropriate time to submit her two-week notice of resignation to Cornerstone Youth Shelter, Ms. Mathews was the person to whom Ms. Law would inquire regarding the status of her forthcoming family day care license. Ms. Mathews informed Ms. Law of her successful compliance with minimum requirements and told her the Department was in the process of signing her family day care license. On January 17, 2002, in reliance on Ms. Mathews repeated assurances that her family day care license was forthcoming and to comply with the "no other work outside the home" requirement, Ms. Law gave her two-week notice of resignation to Cornerstone Youth Shelter. Notwithstanding the fact that Ms. Mathews was assigned to the Law application and was working in the Department's family day care licensing unit, the Department's foster care unit's relicensing investigator, Ms. Dishong, never informed Ms. Mathews that the Department's foster care relicensing unit had concerns of such magnitude that they could be the bases for the denial of her family day care license application. The Department's foster care license unit did not inform the family day care license unit that since November 6, 2002, the Department purportedly had received three additional abuse reports (bringing the total abuse reports to five) that would ultimately adversely impact Ms. Law's family day care license application. This is significant in that Ms. Mathews was the person who at that time had determined that Ms. Law met minimum standards for a family day care license. This inexplicable lack of information sharing between the Department's foster unit and its family day care unit continued from January 17, 2002 to January 2003. Ms. Dishong, Ms. Law's foster care unit investigator and the Department's primary witness, (1) could not identify from memory the three abuse reports allegedly filed against Ms. Law, (2) could not find the three abuse reports in her foster unit renewal investigation file, (3) could not proffer any evidence that allegations contained in those three reports were investigated and corroborated by Department investigators, and (4) did not inform Ms. Law that allegations supposedly contained in those three unidentified abuse reports would adversely impact her pending family day care application. This complete failure to identify, investigate, inform, and discuss with Ms. Law the three abuse reports is significant when the Department's processing of abuse reports 2001-051113 and 2002-001260 that were filed against Ms. Law is compared to its processing of the three unidentified abuse reports. In processing abuse reports 2001-051113 and 2002- 001260, the Department first investigated each report. Second, the Department discussed the allegations of each report with Ms. Law. Third, the Department closed each report with a written finding. Lastly, of the three unidentified three abuse reports testified to by Ms. Dishong, and that constituted the primary basis for denial of Ms. Law's family day care license application, the Department did not follow its previous procedure of identification, investigation, advising, and discussion with Mr. Law and the investigator's recorded finding regarding allegations contained in those three reports. According to Ms. Dishong, the Department's foster care license unit held a foster staff committee meeting during some unidentified time in 2002. Ms. Dishong did not provide the names of her foster care unit coworkers who attended the staffing committee nor did she provide the names of the Department's other employees who attended the staffing committee. It is clear that the Department, in part based upon the foster care staff committee results, determined that Ms. Law's family day care license application would be denied. It is also clear that Ms. Mathews did not attend the Department's foster licensing care unit's staffing committee meeting. Ms. Mathews first became aware of the Department's foster care unit's license renewal investigation file on Ms. Law when she reviewed that file in preparation for this final hearing. Upon completion of her review, Ms. Mathews did not change her prior approval and finding that Ms. Law met minimum standards. Based on her review of that file, she did however qualify her prior approval of granting Ms. Law a family day care license to a "but for" the content of the foster care unit's license renewal investigation file. The record contains no evidence from which to determine how the Department's foster care licensing unit's conclusions and decision to not renew Ms. Law's foster care license were conveyed to the Department's family care license unit. It is clear, however, that the Department's decision denying Ms. Law a family day care license was based on uninvestigated and uncorroborated allegations purportedly contained in three unidentified abuse reports. The Department's denial letter of January 29, 2003, unequivocally confirms the fact that the Department's decision to deny Ms. Law's family day care license application was based upon its consideration as fact, uninvestigated and uncorroborated allegations contained in three unidentified abuse reports. The Department's licensure staffing committee's consideration of Ms. Dishong's personal observations and conclusions contained in her foster care closure form, in its deliberations and its ultimate decision to deny Ms. Law's family day care application, were not based on fact and are, therefore, not justified. Ms. Law has, by a preponderance of the evidence, proven that she successfully met the Department's statutory minimum requirements for a family day care licensee.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order granting Petitioner, Freddie Mae Law, a family day care license. DONE AND ENTERED this 23rd day of July, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2003.
