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.
The Issue The issues in this case are: (a) Whether Petitioner's license as a family day care home should be renewed; (b) Whether Petitioner was required to list her son, Stephen Randall, as a household member on her annual registration application for a family day care home for 2000 and 2001; and (c) Whether Stephen Randall was a member of Petitioner's household at any time in 2000 and 2001.
Findings Of Fact Based on the testimony and demeanor of the witnesses and the documentary evidence presented, the following findings of fact are made: Petitioner's application for license for a family day care home dated October 20, 1997, was received by Respondent on November 20, 1997. Listed among the "household members" on the application was Petitioner's son, Stephen H. Randall, whose date of birth is March 28, 1981. On January 10, 1998, Petitioner submitted her application for registration for a family day care home; the application was received by Respondent on January 14, 1998. Stephen Randall is also listed as a household member on this application. On January 15, 1998, Respondent wrote a letter to Petitioner acknowledging her desire to withdraw her application for license as a family day care home. On February 18, 1998, Petitioner was registered as a family day care home for one year effective February 28, 1998. The letter advised: To maintain your registration in accordance with Section 402.313, Florida Statutes, you must do the following: * * * (3) Send in background screening forms including fingerprints for household members who become 18 years of age, or for adults who move into your home, or when your substitute changes and has not been screened. On October 26, 1998, Petitioner forwarded a renewal application for registration as a family day care home which listed Stephen Randall as a "household member." As a result of a December 9, 1998, inspection by Respondent, it was determined that an adult who had not been screened was living in the registered day care home and, therefore, Petitioner was notified that screening was to be accomplished "ASAP." On January 12, 1999, Respondent sent Petitioner a Certified Letter reminding her that "Adult members residing in the family day care home must go through a background screening process in accordance with Florida Statutes, " On January 28, 1999, Petitioner telephoned Respondent indicating that she "changed her mind about daycare." This telephone call was followed by a letter from Respondent to Petitioner dated January 29, 1999, indicating, "Per your request January 28, 1999, we have withdrawn your Family Day Care license application and closed your registration effective this date." On April 9, 1999, Petitioner submitted an original registration application which listed her 18-year-old son, Stephen Randall, as living in the home which was to become the registered family day care home. On July 6, 1999, Petitioner, by letter, advised Respondent that "My son Stephen H. Randall is no longer living with me (Maxine Torres)." On July 20, 1999, Respondent mailed Petitioner a letter advising that "The Department of Children & Family Services has registered your Family Day Care Home for one year effective July 30, 1999." The letter also advised Petitioner of the necessity of advising Respondent when unscreened adults move into the home in the same language as contained in paragraph 4, supra. On September 23, 1999, Respondent sent Petitioner a Certified Letter which stated: We have received your letter dated July 7, 1999 in reference to your son, Stephen Randale [sic], moving out of your home. Should he return, he must be background screened within ten (10) days. Please remember that all household members must be screened in accordance with F.S. Section 202.303 and 402.305. Failure to do so in a timely manner may result in administrative action, which could result in a fine, suspension, or revocation. On October 31, 2000, the Circuit Court in and for Orange County, Florida, in Case Number CR-O-00-4737/A adjudicated Stephen Henry Randall, Petitioner's son, guilty of violating the following criminal statutes: Subsections 806.13(1)(b)1, 810.02(3), and 812.014(2)(c)5, Florida Statutes, two of which offenses are felonies, and sentenced him to one day in jail and three years' probation. Stephen Randall had been arrested in April 2000 for the criminal offenses he committed. The offenses occurred at a residence two residences away from Petitioner's home, the registered family day care home. Petitioner submitted an application for re-licensure dated May 14, 2000, in which she was required to disclose the name of "everyone who lives in your home." By signing the application, Petitioner attested that the information on the application was "truthful, correct, and complete." Stephen Randall was not listed as living or residing at Petitioner's home. Respondent's investigators and independent witnesses presented credible testimony indicating that Stephen Randall was residing in Petitioner's residence (the registered day care home) during the calendar year 2000. In particular, an abuse report of an incident in January 2000, indicates that Petitioner reported that she "left her teenage son in the home" purportedly to supervise the children left in Petitioner's care; in June 2000, Petitioner again told an investigator, that if she wasn't there her son, Stephen Randall, her daughter or husband watch the children. In addition, independent witnesses, whose children were at the day care home, reported repeatedly seeing Stephen Randall there. Stephen Randall was living in the residence of Petitioner, which was a registered day care home, during the calendar year 2000 and had not been screened as required by Florida Statutes because Petitioner did not advise Respondent that he had returned and was residing in the home. Respondent investigated two Florida Protective Services abuse hotline complaints against Petitioner and determined the complaints to be well-founded. In both instances, Petitioner failed to properly supervise children left in her care and, as a result, failed to ensure the safety of the children. Independent witnesses confirmed the abuse hotline complaints and presented other complaints, all confirming that Petitioner failed to properly supervise children left in her care and failed to ensure their safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for re-licensure of her family day care home. DONE AND ENTERED this 16th day of May, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 16th day of May, 2002. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 James Sweeting, III, Esquire 506 West Washington Street Orlando, Florida 32801 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the Department of Children and Family Services (the "Department") had just cause to revoke the license of Petitioner to operate a family day care home.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: From April 15, 1987, through March 31, 2001, Marcia Edwards operated a registered family day care home at 15475 Chloe Circle, Fort Myers, Florida 33908. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care home involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home must comply with the limits on the number of children under care, as set forth in Subsection 402.302(7), Florida Statutes. Ms. Edwards had been reminded of the requirement for background screening of household members at least once, via letter dated February 12, 1993. Nonetheless, the Department received two complaints in December 1994, regarding the presence of an unidentified person in the home. One complaint noted that an "unidentified male houseguest was eating and drinking the children's food." The second complaint noted that Ms. Edwards was out of town and left the children in the care of her mother and "a guy named Wayne." On January 4, 1995, the Department sent Ms. Edwards a letter informing her of the complaints and reminding her that she could not leave children with persons who had not undergone background screening. The letter noted that neither Ms. Edwards' mother nor "Wayne" had undergone background screening. The adult male referenced in the complaints was Wayne Brueckman, who was residing in the Edwards home. On February 6, 1995, in compliance with the Department's letter, Ms. Edwards submitted the necessary information to initiate background screening on Mr. Brueckman, listed as a "Household Member" and "Sitter/Relief." Mr. Brueckman's background screening revealed no disqualifying information. Ms. Edwards was reminded of the statutory capacity limitations in person and in writing at least 11 times between September 1987 and June 1999. On at least five occasions, Ms. Edwards responded that she understood the capacity limitations. Nonetheless, Department employees personally observed violations of the capacity limitations on at least five separate occasions. By letter dated July 7, 1999, the Department gave Ms. Edwards an administrative warning that she would be subject to imposition of a fine if she continued to operate in violation of the statutory capacity limitations. On August 13, 1996, an abuse report was received by the Department that Wayne Brueckman sexually abused D.S., a three- year-old boy, in the Edwards home. The child had told his mother that Mr. Brueckman kissed his penis, put a "white thing" in his anus, and spanked him when he defecated in his pants. However, the child would not repeat his allegations to protective investigator Mae Cook, and an examining physician could find no physical evidence of sexual abuse. Mr. Brueckman denied the allegations. Ms. Edwards was interviewed by Ms. Cook concerning the August 13, 1996, complaint. Ms. Edwards denied any inappropriate activity and vouched for Mr. Brueckman as her friend of 20 years. Though she closed the file because she did not have sufficient evidence to confirm the allegations, Ms. Cook strongly suggested that children staying overnight not be allowed to sleep in Mr. Brueckman's room and that he not be left alone at any time with children, to avoid any repetition of such allegations. A repeated citation in the violation notices from this point forward was that Ms. Edwards would leave Mr. Brueckman alone with the children in her care for extended periods of time. Concerns regarding Mr. Brueckman were also raised during an investigation of another sexual abuse report received by the Department on November 18, 1996. This complaint involved Z.A., a three-year-old boy in care at the family day care home. The child told a story of some adult in the Edwards home rubbing his genitals, but his limited verbal skills made it unclear whether a man or woman did the touching. Wayne Brueckman and Marcia Edwards were both interviewed by the protective investigator and both denied any inappropriate activity. Again, there was no physical evidence to confirm the allegations. On February 5, 2001, the Department received an abuse report that W.W., a 19-month-old boy in care at the Edwards home, had bruises along his spine and arms, two large bumps on his head, and a patch of hair loss on the top of his head. Medical examinations by the Child Protection Team and the child's pediatrician determined the injuries were significant, inflicted and the result of physical abuse. The abuse report was called in by J.W., the divorced father of the child. W.W. lived with his father and his older sister in the home of J.W.'s mother. J.W.'s teenaged nephew also lived in the house. W.W. did not see his biological mother. J.W. worked as a chef, and left W.W. and his older sister at the Edwards home on evenings that he worked. The medical determination of the approximate time of injury indicated the injuries occurred either at the child's residence or the Edwards family day care home. When at his residence, W.W. was in his father's care. J.W. denied inflicting the injuries on his son, and discounted the possibility that anyone else living in his household might have done so. J.W. was certain that his son's injuries were inflicted at the Edwards home. W.W.'s older sister told investigators that "bad boys" at the Edwards home had inflicted the injuries on the boy. J.W. readily consented to the CAT Scan, eye examination, and clotting factor test recommended by the pediatrician. The father expressed concern about the supervision provided by the family day care home. He recalled several times in the past that when he came to pick up his children at night, he could look in the window of the Edwards home and see Mr. Brueckman sleeping. It required lengthy knocking and ringing of the doorbell to finally rouse Mr. Brueckman or anyone else in the home. Wayne Brueckman and Marcia Edwards were interviewed by the Protective Investigator. Both denied any inappropriate activity or failure to supervise. However, based upon the medical evidence, and multiple interviews including questioning of the children in attendance at the family day care home, the report was closed as verified. The Protective Investigator concluded that the child was injured by other children at the family day care home. The case determination found that Marcia Edwards and Wayne Brueckman inadequately supervised and neglected W.W. On February 22, 2001, while the W.W. case was being investigated, Ms. Edwards applied to renew her family day care home registration. Based upon the W.W. investigation, the Department issued a denial of registration on May 29, 2002. Ms. Edwards requested a formal administrative hearing to contest the denial of registration. The Department forwarded the matter to the Division of Administrative Hearings, where it was assigned DOAH Case No. 01-2840. A hearing was scheduled for September 19, 2001, in Fort Myers, Florida, before Judge Daniel S. Manry. Counsel for Ms. Edwards requested a continuance due to a scheduling conflict. Judge Manry granted the continuance and rescheduled the hearing for October 19, 2001. On October 12, 2001, the Department filed a motion to relinquish jurisdiction, accompanied by a settlement agreement between the parties. On October 15, 2001, Judge Manry entered an order closing the file in DOAH Case No. 01-2840. The settlement agreement required licensure of the family day care home, which would obligate the family day care home to comply with increased regulatory standards. One such standard prohibits the owner from working out of the home during the hours the family day care is operating. Rule 65C- 20.009(1)(a), Florida Administrative Code. In the settlement agreement, Ms. Edwards affirmatively recognized her on-going obligation to comply with all requirements of the Florida Statutes and Administrative Code applicable to family day care homes. The settlement agreement also provided that the Edwards home would receive a consultation by Child Care of Southwest Florida ("CCSWF"), a private, non-profit regional organization that, among many other services, provides training and technical assistance to home-based child care providers. This consultation would be at the Department's expense. CCSWF's consultant would assess the home's compliance with licensing standards and make suggestions as to implementation of best practices. The Department's experience has been that CCSWF's consultation, technical assistance, and training have proven successful in improving marginal child care providers. On December 17, 2001, Lisa Bledsoe, the infant/toddler coordinator for CCSWF, visited the Edwards home for the required consultation. Ms. Bledsoe rated the home based on the Family Day Care Rating Scale ("FDCRS"), an objective tool developed by the National Network for Child Care for the assessment of infant/toddler group care. The FDCRS consists of 32 items which assess the quality of center-based child care for children up to 30 months of age. This 32-item scale covers six categories: Space and Furnishings for Care and Learning, Basic Care, Language and Reasoning, Learning Activities, Social Development, and Adult Needs. Each item can be ranked from 1 to 7. A ranking of 1 describes care that does not even meet custodial care needs while a ranking of 7 describes excellent, high- quality personalized care. The Edwards family day care home received a cumulative score of 2.375 on the FDCRS. Deficits included a sterile and child-unfriendly interior, lack of interesting and colorful pictures and no pictures at child's eye level, insufficient opportunity for outdoor play, minimum hand washing requirements not met, diapers not checked regularly, failure to conduct regular fire drills, dim lighting, and insufficient activities to encourage language development. Ms. Bledsoe contacted Ms. Edwards to notify her the completed rating would be mailed to her. Ms. Bledsoe offered follow-up visits, technical assistance, and training classes for caregivers. Ms. Edwards rejected the offer of further assistance. While acknowledging that her recommendations were not mandatory, Ms. Bledsoe could recall no other day care provider rejecting additional help from CCSWF, which is provided free of charge. The need for Ms. Edwards to provide supervision at the family day care home and to be present was an important issue in the settlement of DOAH Case No. 01-2840. On October 10, 2001, prior to the signing of the settlement agreement, Ellen Blake, a licensing counselor for the Department, conducted a pre- licensing orientation and review at the Edwards home. Ms. Blake and Ms. Edwards had a lengthy discussion about supervision requirements. Ms. Edwards told Ms. Blake that she would be absent only when taking and picking her children up from school. She and Mr. Brueckman were sharing the care of the children. After obtaining licensure, Ms. Edwards appeared to be providing closer supervision of Mr. Brueckman. Ms. Edwards was present for six of the seven licensing inspections the Department performed between October 10, 2001, through June 18, 2002. However, testimony from Ms. Edwards' own witnesses established Ms. Edwards was readily available in the evenings to do extensive hours of volunteer work. Additionally, she transported her own minor children to after-school and weekend activities and was always available to transport other people's children to and from school and outside activities. Further, Ms. Edwards operated a photography business that often involved out-of-home shoots, including a large annual undertaking at St. Xavier School. Mr. Brueckman was left alone with children when Ms. Edwards was out of the home. Ms. Edwards' witnesses also established that she provides child care 24 hours a day, 7 days per week, which is a service not readily available in the community. The home is consistently well utilized, especially during the expanded hours. Mr. Brueckman was providing evening and night supervision, and slept in the same room as the children under his care. The Edwards have three minor children who often have multiple friends spend the night for sleep-overs. Neither the Edwards children nor their friends were restricted from access to the designated child care room. On June 13, 2002, the Department received an abuse report stating that Wayne Brueckman sexually abused D.S., a two- and a half-year-old boy in care at the Edwards family day care home. On June 20, 2002, during an interview with the Lee County Sheriff's Office, Mr. Brueckman admitted to inappropriately touching the child's penis and having the child touch his penis during diaper changes. Mr. Brueckman has been charged with two counts of felony lewd and lascivious molestation and is awaiting trial. Commission of sexual battery on a two-and-a-half-year- old child is a serious violation of the obligation of a child care provider to supervise a child entrusted to their care and for which they are receiving payment. Molestation of a child creates a great likelihood of actual or potential harm. Mr. Brueckman lived at the Edwards home and received only room and board for the continuous care he provided for the children of paying clients, as well as Ms. Edwards' three minor children and their numerous friends. Mr. Brueckman admitted to having had no dating or sexual relationships with an adult for over ten years. He had no private time and felt overwhelmed by his work situation. On June 20, 2002, the Department cited Ms. Edwards for a deficiency in supervision as she failed to meet the needs of children in her care due to Wayne Brueckman's molestation of D.S. The operator of a family day care home is ultimately responsible for the supervision of the children in care. Rule 65C-20.009(3)(a), Florida Administrative Code. Upon learning of Mr. Brueckman's actions, Ms. Edwards immediately evicted him from her house. To meet the requirement that she have a trained substitute caregiver in the home, Ms. Edwards designated her husband as her substitute in July 2002. As of the date of hearing, Mr. Edwards had not completed the required training. During the nine licensing inspections the Department performed between October 10, 2001 through July 1, 2002, various violations of minimum licensing standards were found, including: inadequate lighting in the playroom; failure to keep up-to-date immunization records; failure to keep on file the required enrollment information; ants on the kitchen table; home, furnishings, toys and equipment not kept clean and in good repair; incomplete first aid supplies; and hazardous materials (alcoholic beverages and protein shake mix) within a child's reach. Ms. Edwards corrected all these violations. The Department never sought to fine Ms. Edwards for any of the cited violations. By notice, dated August 14, 2002, the Department revoked Ms. Edwards' license based on the reasons delineated in the letter including past history, licensing inspections, the arrest of Mr. Brueckman for lewd and lascivious molestation of a child at the family day care home, and the ongoing failure to have a qualified substitute.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking the license of Marcia Edwards to operate a family day care home. DONE AND ENTERED this 5th day of February, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2003.
The Issue The issue in this case is whether Petitioner is entitled to a license to operate a family day care home under the provisions of Chapter 402, Florida Statutes (2003).
Findings Of Fact On February 16, 2004, the Department notified Petitioner that her application for a license to operate a family day care home was denied. The denial was based on information obtained by the Department as part of the background check it conducted in review of Petitioner's application. The denial letter advised Petitioner that the family day care home license was denied based on information contained in Abuse Hotline Report No. 2002-132739 (2002 Abuse Report). According to the 2002 Abuse Report, Petitioner failed to take her daughter to the doctor for a follow-up visit three weeks after he removed a cast from her arm, so that the doctor could insure that the injury was healing properly. As a result of the foregoing allegations, the 2002 Abuse Report concluded that there were "some indicators" of medical neglect by Petitioner. The Department's background investigation revealed that Petitioner's husband, Darrell Faniel, who resided with her, pled nolo contendre to the charge of selling cocaine, a felony offense, and was adjudicated guilty of that offense in 1991 in Case No. CF90-5739 in the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, Criminal Division. As a result of this felony conviction on July 25, 1991, Mr. Faniel was placed on probation for five years, but was discharged from probation about 16 months early pursuant to a court order which stated that Mr. Faniel "has complied with the rules and regulation of probation and is no longer in need of supervision." The family day care home license for which Petitioner applied would allow her to care for up to ten children in her home. Given the foregoing information obtained by the Department as part of its background investigation, the Department had doubts about whether Petitioner could provide a safe day care home for children. Accordingly, the Department denied Petitioner's application. The foregoing facts have not been refuted by Petitioner, nor did she present any evidence to demonstrate that she is eligible for licensure as an operator of a family day care home. As noted in the Preliminary Statement, Petitioner did not appear at hearing, and no evidence was presented on her behalf.
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 denying Petitioner a license to operate a family day care home. DONE AND ENTERED this 20th day of July, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Cutina Faniel 2404 Temple Circle Haines City, Florida 33884 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the Department of Children and Family Services, properly denied Gaye Brina Vestal's license application to operate a commercial day care facility, pursuant to Section 402.3055, Florida Statutes.
Findings Of Fact Respondent's legal name is "Gaye Brina Vestal." Respondent is married to "Tony L. Vestal" a/k/a "Tony L. Mitchell." The name on Tony's birth certificate is "Tony Mitchell." When he was eight years old, his mother married a man named "Vestal." Thereafter, Tony went by the last name "Vestal." He attended school, obtained a driver's license and a Social Security account number, married, and had children under the name "Vestal." When he divorced, he began using the name "Mitchell" and obtained a different Social Security account number and driver's license under the name "Mitchell." At some point, Tony married Gaye Brina (Respondent) under the name "Vestal." They then remarried under the name "Mitchell." Respondent tried using the name, "Mitchell" with Tony, but due to hostility from Tony's mother, Respondent elected to return to using the name "Vestal." She was unable to persuade Tony to return to using the name "Vestal." 1/ By a September 16, 1997, application for registration of a family day care home in her home on Sisco Street in Pamona Park, Respondent and Tony listed "Tony Vestal" as Respondent's husband with his "Vestal" Social Security Number. "Shirley Vestal," is listed as a character witness for each of them. The forms clearly show "Shirley Vestal" as Tony's "ex-wife" and as Respondent's "friend." Among her own past employments, Respondent claimed to have been the manager of a pizza parlor; she listed her supervisor there as "Tony Mitchell." She also listed another previous employment as being the "owner" of a different pizza parlor which closed in 1996. Both pizza parlors were named "Tony-O's Pizza." The Sisco Street property was shown as belonging to "Tony Mitchell." Either at this point, or later, while Respondent was operating under provisional day care home licenses, Dede Sharples, a Department employee with responsibility to oversee home day care licensing, became concerned as to the true identity of Respondent's husband. She asked Respondent whether "Tony-O's Pizza" had been named for Respondent's supervisor or Respondent's husband. While there is considerable disagreement between the two witnesses as to exactly what was said, and while Ms. Sharples' questioning may have been tenuous and Respondent's response may have been intended to be humorous, Respondent still left the Department representative with the impression that there were two different "Tony's." On October 16, 1997, the Department did a home inspection. Respondent thereafter corrected the Sisco Street location for fire inspection purposes. By a December 18, 1997, application for a family day care home license at her Sisco Street home, Respondent listed "Tony Lee Vestal" as a household member and listed the owner of the property as "Tony Mitchell." In reviewing the December 18, 1997, application, Ms. Sharples told Respondent that Respondent would need to have Mr. Mitchell sign a letter saying that Respondent had his permission to run a day care facility on his property. 2/ Respondent told Ms. Sharples that "Tony Mitchell" was a good friend that had gone to Indiana and then elsewhere and that he did not want his address given out. She further stated that her home was in Mitchell's name because she had damaged credit and had an oral agreement with Mitchell to pay on the house until it was paid for and then Mitchell would sign the house over to Respondent and Respondent's husband. Ms. Sharples cautioned Respondent that this was a dangerous practice which could leave Respondent with no house and no recourse to her money expenditure for the house. Respondent was granted two six-month provisional family day care home licenses while awaiting Florida Department of Law Enforcement screening and abuse registry screening of herself and "Tony Vestal." On January 12, 1998, the Department received a clear background check/screening on Respondent but no information concerning "Tony Vestal." On February 12, 1998, Ms. Sharples inspected the home on Sisco Street for a compliance check. Respondent was notified of items to correct. On March 9, 1998, the Department sent a certified letter to Respondent because it had not received any communication from her that the noncompliance items had been corrected in anticipation of a second compliance visit. On April 8, 1998, Ms. Sharples secured a copy of the deed to the Sisco Street address. It showed the property to be owned by "Tony Mitchell and Gaye Brina Mitchell, his wife." Respondent admitted to Ms. Sharples that Respondent once was married to "Tony Mitchell," but Respondent did not volunteer that "Tony Mitchell" and "Tony Vestal" were one and the same person. By a November 25, 1998, application for a commercial day care facility license on Grove Avenue in Crescent City, Respondent listed her name as "Gaye Brina Vestal," her address as a post office box, and the owners of the Grove Avenue real property as "Tony L. Mitchell" and herself as "Gaye Brina Mitchell." Respondent signed the application as "Gaye Brina Vestal." Also on November 25, 1998, Respondent submitted an application fee of $25.00 by a check drawn on the account of "L & M Falling Tree Service" signed by "Tony Mitchell." Ken Barnett processes commercial family day care facility license applications for the Department. He is Ms. Sharples' supervisor. On November 18, 1998, the Department sent Respondent a letter verifying that she had not renewed her family day care home license because she was applying for a commercial family day care facility license and informing her that her family day care home must close on December 31, 1998. Respondent asked Mr. Barnett when she would be licensed for a commercial family day care facility license. He replied that if the final inspection went all right, Respondent would be licensed within two weeks of December 31, 1998. As a result of her conversation with Mr. Barnett, Respondent did not timely renew her family day care home license. Her day care home license has since expired. 3/ At some point that is unclear from the record, the Department discovered that "Tony Vestal" and "Tony Mitchell" were one and the same person with two different driver's licenses and two different Social Security account numbers. As a result, on February 4, 1999, the Department denied Respondent's pending application for a commercial day care facility license. At some date that is unclear from the record, the Florida Department of Law Enforcement background screening and the abuse registry screening came back clear on Respondent, "Tony Vestal," and "Tony Mitchell," e.g. "Tony" under both Social Security numbers. Tony testified that he originally had used the name "Mitchell" to hide his children by his first wife so that his first wife would not take their children to Mexico. Tony testified that he never used his Social Security card for a job; he only used it "privately," to keep his ex-wife from finding him. As of the date of the disputed fact hearing, Tony had not notified the Federal Social Security Administration that he had two Social Security identities/accounts. Since the Department's denial, but prior to the disputed fact hearing, Tony's driver's license in the name "Vestal" had been turned-in to the Florida Department of Highway Safety and Motor Vehicles (DHSMV) and his driver's license in the name of "Mitchell" had been revoked by that agency. 4/ Respondent asserted that DHSMV compromised what could have been harsher civil and/or criminal penalties upon its determination that Tony had no intent to defraud. However, Respondent introduced no corroborative evidence of this assertion. At all times material, Respondent knew about Tony's two Social Security cards and two driver's licenses in different names. Respondent and Tony signed all the departmental forms referred-to above pursuant to the penalty of perjury for not telling the truth thereon. Incredibly, Respondent testified that it did not occur to her that the use of different names on the documentation supporting her several applications would create confusion within the Department. Equally incredibly, Respondent testified that she had assumed that the preliminary background screenings and fingerprint checks would disclose all identities so that full disclosure would be made and all discrepancies explained.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order denying Respondent's application for a commercial day care facility license. DONE AND ENTERED this 2nd day of November, 1999, 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 2nd day of November, 1999.
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 The issue in this matter is whether the Department of Children and Families should deny Respondent’s application for registration as a family day care home.
Findings Of Fact The Department is the state agency charged with regulating providers that are licensed or registered as family day care homes. Family day care homes must register annually with the Department. See § 402.313(1)(a), Fla. Stat. Respondent is owned and operated by Cherrie Scally. Ms. Scally has registered Respondent as a family day care home since 1997. In or about August 2015, Ms. Scally filed an application with the Department to renew Respondent’s registration as a family day care home for 2016. Respondent's registration for 2015 expired on October 30, 2015. Upon receiving Ms. Scally’s application, the Department reviewed whether to renew Respondent’s registration as a family day care home. As part of its determination, the Department examined the Florida Central Abuse Hotline Records Search (“CAHRS”). In CAHRS, the Department identified an Investigative Summary involving Respondent that verified a finding of “inadequate supervision” in March 2015. Based on the CAHRS Investigative Summary, the Department issued an Administrative Complaint in November 2015, revoking Respondent’s registration as a family day care home.2/ The Department determined that it could no longer approve Respondent’s registration “based on the verified finding of inadequate supervision.” The CAHRS resulted from an incident that allegedly occurred on March 5, 2015. On March 6, 2015, the Central Abuse Hotline received an anonymous phone call reporting an injury to a child at Respondent’s family day care home. A four-year-old girl who attended Respondent’s family day care home reported to her mother that another child had hurt her.3/ Jessica Baloy, a child protective investigator with the Department, was assigned to investigate the incident. Her duties include investigating facilities regarding complaints of child abuse and neglect. Ms. Baloy prepared the CAHRS Investigative Summary. Ms. Baloy visited Respondent's family day care home on March 9, 2015, to investigate the allegation. Ms. Scally informed Ms. Baloy that she had no knowledge of how or when the child was injured. Ms. Scally did not learn of the incident until the child’s mother called her the evening after the child was picked up. Ms. Scally thought that the incident may have occurred in her “playroom” while she was in her kitchen either cleaning up another child or preparing snacks.4/ During her visit, Ms. Baloy found that the part of Ms. Scally’s home used for childcare consists of two rooms, a “playroom” and a kitchen. The rooms are located next to each other, but a wall separates them. Ms. Baloy observed that the wall obstructs the view between the playroom (where the injury allegedly occurred) and the kitchen where Ms. Scally believes she was located at the time of the incident. Ms. Scally admitted to Ms. Baloy that, while she is able to hear the children in the playroom from the kitchen, she is unable to see directly from the kitchen into the playroom. In her investigation, Ms. Baloy reported that the child had “no indicator” of physical injury. In other words, Ms. Baloy did not find evidence to suggest the child had sustained an injury. Ms. Baloy personally interviewed the child and did not observe any discomfort or physical injuries. Ms. Baloy also received information from the child’s mother that a doctor had examined the child and determined that she had not suffered any trauma, just “some irritation.” The child’s mother decided that no further medical treatment or examination was needed. In her Investigative Summary, Ms. Baloy reported that “[o]bservations of the home daycare were positive that it was not hazardous for the children.” Ms. Baloy also declared that Ms. Scally “once notified by a parent completed the proper notifications needed in regards to this incident.” However, Ms. Baloy did have “some concerns in regards to supervision.” She found that when Ms. Scally was working/standing in her kitchen, she could not view the children in the playroom. Consequently, if something bad happened, she would not be able to see it. Also during her visit to Respondent, Ms. Baloy observed 11 children in Respondent’s facility. Consequently, Respondent was over capacity by one child. (As discussed below, family day care homes are restricted to a maximum of ten children at one time.) After her visit, Ms. Baloy closed her investigation with “verified findings for inadequate supervision.” Ms. Baloy was not aware of any prior investigations involving Respondent. Dinah Davis is the policy supervisor for the Department’s Office of Childcare Regulation. Her responsibilities include approving applications for family day care home registrations with Samantha Wass de Czege, the Department’s Director for the Office of Childcare Regulation. Ms. Davis expressed that the Department was concerned with Ms. Baloy’s Investigative Summary because the finding of “inadequate supervision” indicated that Ms. Scally left the children unattended outside of her direct supervision. The Department’s “rule of thumb” regarding supervision is that a caregiver must be within “sight and sound of the children and [be] able to respond to emergency situations.” Ms. Davis expressed that a constant sightline is crucial to allow the caregiver to respond to and prevent an emergency or potentially harmful situation. Adequate “sight” supervision means that children should be at least within the caregiver’s peripheral vision. In addition, Ms. Davis explained that, by statute, no family day care home is allowed to care for more than ten children at one given time. Ms. Davis referred to section 402.310 as the Department’s authority to deny Ms. Scally’s application. Although section 402.310 allows the Department to place a family day care home registration on probation status, Ms. Davis stated that the Department did not consider the option to place Respondent on probation. Ms. Wass de Czege also testified regarding the Department’s decision to revoke (deny) Respondent’s application for registration. Ms. Wass de Czege stated that the Department’s action was based on the child protective investigator’s findings of “inadequate supervision” and overcapacity. Ms. Wass de Czege agreed with Ms. Davis that supervision in a family day care home requires “direct sight and hearing of the children at all times” so that the caregiver is “able to respond to meet the needs of the children.” Ms. Wass de Czege explained that based on the floor design of Ms. Scally’s home, “she could not have the children in her sight. So, she was not meeting that parameter of the definition of supervision.” Ms. Wass de Czege explained that the Department’s definition of “inadequate supervision” for family day care homes is found in Florida Administrative Code Chapters 65C-22 and 65C-20.5/ Ms. Wass de Czege also remarked that having more than ten children in care at a family day care home is considered overcapacity. Therefore, having 11 children present in the home at the time of Ms. Baloy’s visit caused Respondent to be out of compliance with the governing regulation. Ms. Wass de Czege also conveyed that registration of a family day care home is basically a paper process. The applicant submits the paperwork. The Department checks off the information listed in section 402.313(1)(a). If approved, the applicant can care for children. Ms. Wass de Czege commented that, because of a lack of manpower and resources, a registered family day care home is not subject to routine inspections by the Department. Consequently, the Department has little regulatory oversight of Ms. Scally’s home. Based on its review of the CAHRS, the Department determined that Respondent failed the background check necessary to register as a family day care home for 2016. Ms. Scally testified on behalf of Respondent at the final hearing. Ms. Scally has operated her family day care home since 1997. She has successfully registered with the state every year since then. She cares greatly for the children entrusted to her. This current matter is the first issue she has encountered regarding her registration. Regarding the incident on March 5, 2015, Ms. Scally did not learn that a child may have been harmed at her home until the child’s parent called her that evening to report an injury. The parent relayed that her daughter told her that another child had poked her in a sensitive area, drawing blood. Upon learning of the injury, Ms. Scally immediately took action. That evening, she spoke with the parents of both children involved to make sure all parties were aware of the situation. The next morning, Ms. Scally called the injured child’s parent back to inquire of her well-being. Ms. Scally also contacted her own pediatrician seeking advice on the situation. Ms. Scally offered to arrange for her pediatrician to examine the child. Ms. Scally herself was the anonymous caller reporting the incident to the Central Abuse Hotline.6/ She called the abuse hotline on the next morning. (The CAHRS Investigative Summary notes that the call was received on March 6, 2015, at 10:38 a.m.) Ms. Scally called the abuse hotline because she knew reporting the injury was the proper and legally required step to take. Ms. Scally commented that the Department would not have learned of the incident but for her phone call. Ms. Scally conceded that, when she is standing in her kitchen, she does not have a direct line of sight with the children in her playroom. Consequently, Ms. Scally admitted that if the child was injured in the playroom while she was in the kitchen, the child was out of her sight for a short period of time. On the other hand, Ms. Scally asserts that she can always hear her children from the kitchen. Furthermore, no child is ever out of her eyesight for more than a couple of moments. Ms. Scally also represented that she has taken steps to ensure that she can maintain “sight and sound” supervision over her children in the future. She has purchased a mirror to place in the hallway between the playroom and the kitchen. This mirror allows her to see into either room from the other. Ms. Scally stated that in her 19 years of childcare, she has never had any incidents in her family day care home. Ms. Scally acknowledged that she might have had 11 children in her care on the occasion of Ms. Baloy’s visit to her home on March 9, 2015. Ms. Scally explained that it was likely during a “transition” period as her children were being picked up and dropped off and was not a regular occurrence or for an extended period of time. Based on this incident, Ms. Scally asserts that she will be extra cautious about the interactions between the children in her care. Ms. Scally presented testimony from several parents whom she serves. They each asserted that Respondent provides a valuable service, and they trust her with their children in her home. Mia Carla Hagins placed her daughter with Respondent from 2009 through 2014. Ms. Hagins testified that Ms. Scally ensures safety, nurturing, and care for the children she supervises. Thomas Breck placed two children with Ms. Scally from 1996 through 2000. Mr. Breck testified that Ms. Scally provided excellent care and demonstrated complete professionalism. Mizanne Brown placed her child with Ms. Scally for ten years. Ms. Brown testified that Ms. Scally was fabulous, nice, and wonderful. Ms. Scally also produced 26 letters of recommendation from parents and teachers of children for whom she has cared. Ms. Scally asserted that these letters show how positively her community views her, her home, and her childcare services. Based on the competent substantial evidence presented at the final hearing, the Department failed to establish, by a preponderance of the evidence, sufficient grounds to deny Respondent’s application for registration as a family day care home under the provisions of section 402.310. Accordingly, the Department should approve Respondent’s application to register as a family day care home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order approving Respondent’s application for registration as a family day care home. DONE AND ENTERED this 2nd day of August, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2016.
