The Issue Should Petitioner revoke or impose other discipline against Respondent's child care facility license? More specifically should action be taken against the license for Respondent's knowingly allowing persons who had not undergone Level 2 screening in accordance with Section 435.04, Florida Statutes, to either work in, volunteer in, or be present in the licensed facility or to reside in the residence of Marie McCracken adjacent to the facility, all in a setting in which one of those persons as a part of "child care personnel" would be disqualified to work in the facility under terms set forth in the screening process? See Section 402.310, Florida Statutes.
Findings Of Fact Petitioner in accordance with Section 402.305, Florida Statutes, licenses child care facilities to provide child care in Florida. Respondent holds a child care facility license to operate Pine Ridge Day Care in Duval County, Florida. Respondent has two adult sons, Keith McCracken and Ohlan McCracken who were adults at times relevant to the inquiry. Walter J. Giannone, Family Services Counselor for Petitioner, received a complaint on July 23, 1998, in relation to circumstances in Respondent's child care facility. The complaint was in relation to the attendance at the facility by Respondent's two adult sons. Mr. Giannone investigated the complaint on July 28, 1998. To conduct his investigation Mr. Giannone went to Respondent's licensed premises. While there he spoke to Ms. McCracken and asked her about her sons being present at the facility. Ms. McCracken denied that her sons were ever present at the facility. Several other staff members at the facility gave statements that were in accordance with Ms. McCracken's explanation that the sons were never at the center. By virtue of the visit, Mr. Giannone did not confirm the presence of Respondent's sons at the facility. Mr. Giannone received another complaint concerning Respondent's child care facility on October 22, 1998, that Respondent's adult sons were working with children at the facility. That complainant wanted to know if those adult sons had been screened. The complainant indicated to Mr. Giannone that the sons were there "all the time." In relation to the complaint made on October 22, 1998, Mr. Giannone went to the facility on October 28, 1998, to investigate. He spoke to Ms. McCracken. Ms. McCracken told Mr. Giannone that her sons stopped by the facility at various times of the day. However, Ms. McCracken told Mr. Giannone that the sons did not provide care to the children. To that date, Ms. McCracken realized that the sons had not been required to undergo the screening requirements of Section 435.04, Florida Statutes, as "child care personnel," as defined at Section 402.302(3), Florida Statutes. Following a discussion about the advisability of screening the two adult sons, in which Mr. Giannone recommended that both sons be screened to avoid any concerns about the propriety of their attendance at the facility, Mr. Giannone left Ms. McCracken background screening forms to be executed by her two adult sons. This arrangement was also made in consideration of the possibility that the sons could serve as substitute personnel at the facility when regular employees were absent. On this visit Mr. Giannone also determined that Ohlan McCracken was living with Respondent on property that was adjacent to the child care facility. On November 2, 1998. Mr. Giannone received another complaint concerning Respondent's child care facility. It was reported that Keith McCracken had lived in a bathroom in the child care facility for over a year, with a sign posted on the bathroom door that said "out of service." This complainant also stated that Ohlan McCracken lived next door to the facility and that both McCracken men took care of children at the facility without undergoing screening. This allegation was investigated by Mr. Giannone on November 3, 1998, during which Mr. Giannone made an inspection of the facility. In particular, he examined the bathroom that had been described by the complainant and found no evidence that anyone was living in the bathroom. He found the bathroom to be clean and stocked with supplies. Mr. Giannone made this discovery after Ms. McCracken told Mr. Giannone that Keith McCracken did not live in the bathroom. In this visit Ms. McCracken told Mr. Giannone that both of her sons lived next door to the facility. While Mr. Giannone was at the facility on this date, Keith McCracken was summoned by pager and came to the facility within 5 minutes. On November 2, 1998, within 5 minutes of the time the aforementioned complaint was made, a second complaint was received from a different person. The second complainant indicated that she had been using the facility for the past year for child care and had observed both McCracken sons caring for children at the facility. In reference to that complaint, when Mr. Giannone made his investigation on November 3, 1998, he observed Ohlan McCracken at the center around nap time helping- out with child care. Ms. McCracken acknowledged that Ohlan McCracken worked on that date and the day before to assist Ms. McCracken in the attempt to stay within the ratio of staff- to-children called for by licensure requirements. Before Mr. Giannone left the facility on November 3, 1998, he collected the completed screening forms that had been executed by Keith McCracken and Ohlan McCracken. It was later revealed that Ohlan McCracken was disqualified from working in a position of trust or responsibility to provide "child care" by virtue of his commission of the offence of auto theft, pursuant to an arrest in Duval County, Florida, on December 31, 1996. The disqualification for that type of offense is related to Chapter 812, Florida Statutes, as referred to under the screening provisions of Section 435.04(2)(r), Florida Statutes. Ms. McCracken was made aware of the discovery that Ohlan McCracken was disqualified to work in "child care" following the screening. With this revelation, Ms. McCracken left Mr. Giannone with the impression that she was previously aware that Ohlan McCracken had a record but the nature of the record pertained to a juvenile offense. Following the notice of disqualification, Petitioner, in the person of Mr. Giannone, has no knowledge that Ohlan McCracken has returned to Respondent's child care facility. Ms. Laura Thomas had children who were cared for at Respondent's child care facility. Dates upon which the children received care began in March 1995 and continued into October 1998, for at least one of her children. While her children were present, Ms. Thomas observed Keith McCracken and Ohlan McCracken caring for children at the facility on a consistent basis for about two years. Specific care observed by Ms. Thomas involved Ohlan McCracken giving a bottle to Ms. Thomas' infant son on many occasions. Ms. Thomas observed her daughter playing with Keith McCracken many times. Ms. Thomas observed Ohlan McCracken and Keith McCracken providing lunches for the children at the facility. Ms. Thomas observed Keith McCracken and Ohlan McCracken caring for the children at the close of the day while the children were waiting to be picked up by their parents. Ms. Thomas had been in the facility at various times between 6:30 a.m. and 6:00 p.m. and observed Keith McCracken and Ohlan McCracken participating in child care. Maurice W. Murray, Family Services Counselor Supervisor for Petitioner, has had experience with Respondent and her Pine Ridge Day Care. Although Mr. Murray does not consider Respondent's child care facility to be a "problem center," he has observed inadequacies in the facility in the past. One of his observations had to do with the fact that Ms. McCracken "was not real good with keeping up with her background screening timely." In particular, a background screening warning letter had been issued on April 3, 1996, with respect to an employee at Respondent's child care facility. Mr. Murray also had discussion with Ms. McCracken about the condition of playground equipment being in disrepair. While on the playground performing an inspection, Mr. Murray observed Ohlan McCracken on the playground at the facility. Mr. Murray asked Ms. McCracken, "Who's he?" Ms. McCracken replied "that's my son, Ohlan." Mr. Murray stated, "Well, you know, if he is going to be here, he needs to be background screened." To emphasize the point, Mr. Murray wrote in his supplemental inspection report for that day the details of this conversation. Finally, concerning the performance of the facility, Mr. Murray made one other reference to a background screening issue aside from the experience that Mr. Giannone related as has been reported in the fact-finding. In her testimony at hearing Ms. McCracken acknowledged that her sons had helped out at the facility whenever she was "shorthanded." Ms. McCracken acknowledged telling Mr. Murray that her sons were there at the facility a lot but she demurs that she is their mother and their presence at the facility should not be unexpected. Further, Ms. McCracken testified that she did not see anything wrong with her sons giving children their snacks if the sons were at the facility. Ms. McCracken never observed Ohlan giving bottles to Ms. Thomas' son. Ms. McCracken acknowledged that her sons played with the children on the playground but not on a regular basis. Ms. McCracken established that her sons are not regular employees who have been hired and paid to provide child care at the facility. Ms. McCracken identified that on the date that Mr. Murray saw Ohlan McCracken on the playground, Ohlan McCracken was not living at the residence adjacent to the facility. As Ms. McCracken established, at the time that Ohlan McCracken was observed on the playground by Mr. Murray, he was not there for the purposes of assisting in child care. As established by Ms. McCracken, Ohlan McCracken moved back to the residence adjacent to the facility in the latter part of 1997. At times relevant to the inquiry, it can reasonably be inferred that Respondent was aware of the participation of Keith McCracken and Ohlan McCracken in providing child care at Respondent's licensed facility. As Ms. McCracken described it, she was aware that Ohlan McCracken had been trouble for "taking a car" before the results of the screening were made known to her. She did not realize that the offense was a felony. Ms. McCracken established in her testimony that Ohlan McCracken has not returned to the facility following the disclosure through the screening results that Ohlan McCracken was disqualified from serving as "child care personnel." Ohlan McCracken continues to live with Respondent at the residence adjacent to the facility beyond the point in time during which Respondent had been charged with violations in accordance with the December 2, 1998 charging document. Concerning the past license history, Ms. McCracken acknowledges an incident in 1981 in which the facility had a problem with rendering care for "too many children."
Recommendation Upon consideration of the violations and the standards for imposition for discipline, it is RECOMMENDED: That a final order be entered finding the Respondent knowingly allowed unscreened personnel, her sons, to work in the child care facility, in a setting where Respondent knew that those persons should have been screened before working in the child care facility, in which one of those persons was disqualified from working in the facility, and suspending the license for the child care facility for 30 days. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 28th day of May, 1999. COPIES FURNISHED: Gene T. Moss, Esquire Moss and Andrews 337 East Bay Street Jacksonville, Florida 32202 Roger L.D. Williams, Esquire Department of Children and Family Services Post Office 2417 Jacksonville, Florida 32231 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent, in November 2006, violated child care facility licensing standards relating to supervision set forth in Florida Administrative Code Rule 65C-22.001(5), as alleged by the Department of Children and Family Services (Department) in its December 15, 2006, letter to Respondent. If so, whether Respondent should be fined $1,000.00 for this violation, as proposed by the Department in the aforesaid December 15, 2006, letter.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, including Thursday, November 16, 2006, Respondent operated a child care facility located at 780 Fisherman Street in Opa Locka, Florida (Facility) pursuant to a license issued by the Department, which was effective June 10, 2006, through June 9, 2007. On November 16, 2006, J. D. was one of nine children between the ages of 12 and 23 months in the Facility's Wobbler/Toddler class. Two properly credentialed Facility staff members, Charnette Muldrow and Barry Thompson, were assigned to oversee the children in the class that day. Cheryl Smith is now, and was at all times material to the instant case, including November 16, 2006, the Facility's office manager. Among her various responsibilities is to make sure that state-mandated staff-to-child ratios are maintained in each of the Facility's classrooms. To this end, she has placed posters in the classrooms indicating what these "appropriate ratios" are and that they "must be maintained at all times." In addition, she "do[es] counts [of staff and children in each classroom] every hour on the hour." She did these "counts" in J. D.'s Wobbler/Toddler classroom on November 16, 2006, and each time found the staff-to-child ratio to be "correct" (one staff member for every six children). Sometime around noon on November 16, 2006, a Facility staff member brought J. D. to Ms. Smith's office. J. D. was not crying, although she had a roundish red mark on her right cheek that she had not had when her mother had dropped her off at the Facility earlier that day. "It looked like ringworm to [Ms. Smith] at first." There were no discernible "puncture wounds," nor was there any blood. The staff member who had brought J. D. to the office explained to Ms Smith that J. D. had "bumped her face" on the "corner cabinet in the classroom." After administering first-aid to J. D., Ms. Smith attempted to contact J. D.'s mother, J. F., by telephone. She was unable to reach J. F., but left a message at J. F.'s workplace. J. F. returned Ms. Smith's call at 12:54 p.m. and was told by Ms. Smith that J. D. had "bumped her head on a cabinet while playing, and she ha[d] a little bruise," but was "doing fine." J. F. left work at 4:30 p.m. and went directly to the Facility to pick up J. D. Upon arriving at the Facility, J. F. first went "upstairs" to see Ms. Smith, who told her "about the incident and what [had] happened." J. F. then went to retrieve J. D. (who was "downstairs"). It did not appear to J. F., when she examined the mark on J. D.'s cheek, that the mark was "from the cabinet." In her opinion, it looked like J. D. had been bitten by "somebody,"4 a view that she expressed upon returning to Ms. Smith's office. Ms. Smith replied, "There's no biters in here.5 Nobody bit J." Before leaving the Facility with J. D., J. F. signed an Accident/Incident Report that Ms. Smith had filled out. According to the completed report, on "11/16/06 at 12:00 noon," J. D. "was playing with . . . toys and bumped her face on the corner cabinet," leaving a "red mark on the right side of her face"; Mr. Thompson was a "[w]itness[] to [the] [a]ccident/[i]ncident"; the injured area was treated with "antiseptic spray[,] triple antibiotic ointment and a cold compress"; and a message was left with J. F. "to call school." J. F. took J. D. directly from the Facility to the Skylake office of Pediatric Associates, a pediatric group practice to which J. D.'s regular pediatrician belonged. J. D.'s regular pediatrician was unavailable that evening, so J. D. saw someone else,6 who gave her a signed and dated handwritten note, which read as follows: To whom it may concern The injuries on [J. D.'s] cheek and back are consistent with a human bite. Please investigate.[7] Thank you. J. F. reported to the local police department, as well as to the Department, that J. D. had been injured at the Facility. J. F. provided this information to Ian Fleary, the Department's childcare licensing supervisor for the north area of the southeast zone, during a visit that she made to Mr. Fleary's office late in the afternoon on Friday, November 17, 2006. J. F. brought J. D. with her to Mr. Fleary's office and showed Mr. Fleary the red mark on J. F.'s cheek, as well as three other, less visible marks on J. F. (one on her cheek, beneath the red mark; one on her lower back; and one on her right forearm).8 Mr. Fleary took photographs of all four marks.9 Mr. Fleary asked one of his subordinates, Linda Reiling, to "address [J. F.'s] complaint as soon as possible." Ms. Reiling, accompanied by Mr. Fleary, went to the Facility on Monday, November 20, 2006, to investigate J. F.'s complaint. Ms. Reiling and Mr. Fleary interviewed Facility staff members, including Ms. Muldrow and Mr. Thompson.10 Ms. Muldrow stated that she had gone to the restroom, having asked another staff member "to watch the children" in her absence, and first "saw the mark on [J. D.'s] cheek" upon her return to the classroom. Mr. Thompson advised that he was "on lunch break at the time the incident occurred."11 No one to whom Ms. Reiling and Mr. Fleary spoke at the Facility "admitted seeing [J. D.] being bitten." Based on her investigation, Ms. Reiling was unable to determine, one way or another, whether the staff-to-child ratio in J. D.'s classroom was "correct" on "[t]he day of the incident," but she did find that there was a "lack of supervision." Ms. Reiling prepared a written complaint documenting this finding and provided it to Ms. Smith. Meloni Fincher, a child protective investigator with the Department, also investigated the matter. She was assigned the case on November 17, 2006, after the incident had been reported to the Florida Abuse Hotline. Ms. Fincher began her investigation by visiting J. F. and J. D. at their home that same day (November 17, 2006), some time after 4:00 p.m. During her visit, Ms. Fincher observed that J. D. had "bruises to her cheek, her back, and [also] her arm." Ms. Fincher was unable to determine the nature or cause of these injuries, so she made arrangements for J. D. to be seen on November 21, 2006, by a University of Miami Child Protection Team physician. Ms. Fincher went to the Facility on November 21, 2006, but was unable to speak to any staff members about the incident at that time. She returned to the Facility on December 7, 2006. This time, she interviewed Ms. Muldrow, Mr. Thompson, Ms. Smith, and Dawnise Mobley.12 None of the interviewees claimed to be an eyewitness to the incident, having personal knowledge of what happened to J. D. After receiving a copy of the Child Protection Team's "medical report," which contained the team's determination that J. D. had "bite marks at different stages [of] healing [which were] consistent with another child [having] bit[ten] [her]," Ms. Fincher, on December 12, 2006, "closed the case" finding "[v]erified indicators of inadequate supervision."13 The evidence received at the final hearing does not allow the undersigned, applying a clear and convincing competent evidence standard, to reach the same conclusion that Ms. Fincher and Ms. Reiling did regarding the adequacy of the supervision J. D. received at the Facility on November 16, 2006. While the evidence is sufficient to support a finding that J. D. suffered a single (red) mark on her right cheek while at the Facility that day, it does not clearly and convincingly establish that she was being inadequately supervised at the time. Inferring that Respondent failed to provide J. D. with adequate supervision based on the mere fact that she received this mark while in Respondent's care is unwarranted, absent a clear and convincing showing (enabling the undersigned to conclude, with a firm belief and conviction and without hesitancy) that a toddler would not receive such a mark while at a child care facility in a classroom setting like J. D. was in unless there was a lack of adequate supervision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order dismissing the "inadequate supervision" charge made in its December 15, 2006, letter to Respondent. DONE AND ENTERED this 11th day of October, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 October, 2007.
The Issue The issue is whether Respondent properly denied Petitioner's application for a license to operate a foster home.
Findings Of Fact In February 1990, Petitioner married Reverend Robert E. Osborne, Jr. In 1992, Petitioner lived at 6040 Oscar Road in Greenwood, Florida. On November 21, 1992, Willie Cobb, Petitioner's adult friend, confronted Petitioner at a convenience store in Greenwood, Florida. He wanted Petitioner either to let him drive her car or to give him a ride. Petitioner refused Mr. Cobb's demands because he was intoxicated. Subsequently, Petitioner signed an affidavit charging Mr. Cobb with domestic violence. The charging document indicates that Mr. Cobb's address was the same as Petitioner's at 6040 Oscar Road, Greenwood, Florida. On November 23, 1992, Mr. Cobb entered a guilty plea to the domestic violence charge in the County Court of Jackson County, Florida. Mr. Cobb's sentence included, but was not limited to, one year of probation. On December 31, 1992, Willie Cobb stabbed Petitioner in the shoulder with a knife in the kitchen of her home at 6040 Oscar Road, Greenwood, Florida. Petitioner signed an affidavit charging Willie Cobb with aggravated battery. The charging document that Petitioner signed lists Mr. Cobb's address as 6040 Oscar Road, Greenwood, Florida. The resulting criminal case against Mr. Cobb was eventually dismissed because Petitioner failed to appear for two interviews with the prosecutor. In April 1993, Respondent's staff investigated allegations of sexual abuse of Petitioner's daughter, Jennifer Smith, by Willie Cobb. Jennifer Smith was 11 years old at the time. The resulting Florida Protective Services System case was closed without classification. Petitioner testified during the hearing that Willie Cobb was not living in her home in April 1993. Petitioner's testimony on this point is not persuasive. Even so, there is no competent evidence to support hearsay allegations that Willie Cobb sexually abused or molested Jennifer Smith in April 1993. In November 1993, Reverend Osborne, Petitioner's husband, lived with Petitioner at 6040 Oscar Road in Greenwood, Florida. Several other family members resided at the same address, including Petitioner's daughter, Jennifer Smith, and her nine-year-old granddaughter, Terri Hayes. Willie Cobb occasionally did yard work and odd jobs around the home at 6040 Oscar Road in Greenwood, Florida in November 1993. Petitioner's testimony that Willie Cob was not her boyfriend and did not live in the same house in November 1993 is not persuasive. On the evening of November 28, 1993, Petitioner entertained some of her friends, including Willie Cobb, at her home at 6040 Oscar Road, Greenwood, Florida. While Petitioner was with her friends in the yard, Willie Cobb was in the house with Terri Hayes. Someone called the police, alleging that Mr. Cobb hit Terri Hayes in the jaw in an attempt to take $20 from her. Someone also made a call to the Florida Protective Services System. During Respondent's subsequent investigation, Petitioner stated that Mr. Cobb just tapped Terri Hayes on the head without hurting her. However, she was not an eyewitness to the alleged incident. During the hearing of the instant case, Terri Hayes testified that Willie Cobb never hit her. Her testimony is credible and without contradiction. On August 20, 1994, Willie Cobb was arrested for obstruction of justice. The charging document indicates that Mr. Cobb lived at 6040 Oscar Road, Greenwood, Florida. Mr. Cobb pled guilty to resisting arrest without violence. On January 19, 1995, the County Court Judge in Jackson County, Florida, sentenced Mr. Cobb to one year in jail. In October 1994, Respondent's staff was called to investigate allegations that Petitioner had slapped and punched her daughter, Jennifer Smith, in the face. Respondent's investigation resulted in the case being closed without classification. During the hearing of the instant case, neither Petitioner nor Respondent presented testimony regarding Petitioner's alleged physical abuse of her daughter, Jennifer Smith, in October 1994. There is no competent evidence that such an incident ever occurred. Later in 1994, Petitioner moved to the state of Washington, where she worked as a caretaker in a group home. Petitioner's daughter, Marian, and Marian's seven-year-old son, Trammel, also moved to the state of Washington. Petitioner's daughter, Marian, subsequently abandoned Trammel, leaving him with some of her friends. When Petitioner learned that her grandson, Trammel, had been abandoned, Petitioner picked him up and took him to the hospital. Respondent's counterpart in Washington tried to place Trammel in foster care. However, Petitioner eventually got official custody of her grandson. Trammel still lives with Petitioner as her adopted son. There is no evidence that Petitioner ever abandoned one of her children, grandchildren, or any other child for which she was responsible.
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 foster home. DONE AND ENTERED this 12th day of June, 2001, 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 June, 2001. COPIES FURNISHED: Mary Collins Post Office Box 208 Greenwood, Florida 32443 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should have granted Petitioner a license to operate a family day care home.
Findings Of Fact In January 1992, Petitioner operated a foster home for dependent children. The foster home was licensed by Respondent's predecessor, the Department of Health and Rehabilitative Services (hereinafter referred to as Respondent). In January 1992, Respondent received a report that Petitioner and her husband, Jim Shell, had meted out bizarre and excessive punishments to the children in their foster home. The report also alleged that Petitioner tied the younger foster children into their cribs at night. This report resulted in an investigation by Respondent. In the year prior to the initiation of the investigation, the following children stayed in Petitioner's foster home: H.S. (d.o.b. 4-6-89); S.S. (d.o.b. 10-1-86); T.H. (d.o.b. 5-3-89); S.A.C. (d.o.b. 9-18-88); B.Y. (d.o.b. 11-2-80) and G.Y. (d.o.b. 12-2-82. H.S. and S.S. were sisters. S.A.C., B.Y. and G.Y. were siblings. T.H. was mentally retarded. Petitioner gave B.Y. more household duties in the home than would be expected as chores for a child of her age. These responsibilities included housecleaning, laundry and child care. Additionally, Petitioner often kept B.Y. home from school to do housework. To excuse B.Y.'s absence, Petitioner would write notes to the school, falsely stating that B.Y. had a doctor's note and stayed home sick. B.Y. and G.Y. were forced to do push-ups as punishment for minor infractions. Petitioner's testimony that the children were required to do these push-ups as a joke or game is not persuasive. Mr. Shell spanked G.Y. for mis-reciting spelling words. This occurred once a week. On one occasion, B.Y. observed Mr. Shell hit G.Y. on the buttocks with a two by four. On another occasion, Mr. Shell jerked S.A.C. off a trampoline in the backyard, spanked her and threw her onto the ground. As a result of this rough treatment, S.A.C.'s head struck a tree. Petitioner regularly tied H.S.; S.S.; T.H.; and S.A.C. into their cribs at night because they would get up after being put down for the night. When B.Y. untied the children, Petitioner told her that when the children are tied up, they are supposed to remain that way. There was great strife in the Shell household. Petitioner and her husband often argued. For example, on B.Y's first night in the home, Petitioner hit Mr. Shell on the head with a frying pan. It is contrary to Department policy to physically restrain or punish children in foster care. Foster parents learn this in the training they receive before receiving their foster care licenses. Notwithstanding Petitioner's claim that she is separated from her husband, they continue to live under one roof. The house they live in is on the same property where Petitioner intends to operate a family day care home. The foregoing facts, among others, were set forth in the Respondent's final investigative report, Florida Protective Services System Abuse Report Number 92-007405. On April 22, 1992, the Respondent sent a certified letter to Petitioner informing her that the investigative report had been classified as proposed confirmed, that she had the right to request that Respondent amend or expunge the report, and that any such request would be considered only if received by Respondent within sixty days of her receipt of the April 22, 1992 letter. The letter contained the following language: If you do nothing, your right to appeal the classification of the report will be completely barred. By not choosing [to ask for amendment or expungement], this report will automatically be classified as CONFIRMED. This means that you do not contest the department's right to maintain the report findings as stated, including your identification as a perpetrator. A perpetrator in a confirmed report of abuse, neglect or exploitation may be disqualified from working in certain positions of trust, including working with children, disabled adults or aged persons. (Emphasis supplied). Petitioner signed the acknowledgment of receipt for the April 22, 1992, letter on April 27, 1992. She never requested amendment or expungement of the investigative report. Because neither amendment nor expungement of the report was sought, the confirmed classification became final agency action sixty days after Petitioner's receipt of the letter on April 27, 1992. In other words, the agency action became final on June 26, 1992. No appeal was taken from this action.1 In 1994, the Agency for Health Care Administration granted Petitioner an exemption from disqualification from employment in positions covered by Section 400.512, Florida Statutes. That section discusses the requirement for employment screening, using level 1 standards, for home health agency personnel, persons referred for employment by nurse registries, and persons employed by sitter, companion, or homemaker services registered under Section 400.509, Florida Statutes. The record does not indicate whether the Agency for Health Care Administration conducted an evidentiary hearing before making its decision to grant Petitioner the exemption.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying the application of Petitioner Patricia Shell to operate a registered family day care home. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998.
