Findings Of Fact Justification for Agency Action On August 14, 1992, the Manatee County Sheriff's office reported to HRS that a 911 emergency telephone call had been made reporting that an infant died apparently as a result of an accidental choking while at the day care facility owned and operated by the Petitioner, Alice P. White, d/b/a Miss Patty's Day Care Center. On or about August 17, 1992, an autopsy report on the infant found that the cause of death was sudden infant death syndrome (SIDS), which was inconsistent with an accidental choking, and an HRS child day care facility licensing inspector placed a followup call to the Petitioner. Among other things, staffing at the facility on August 14, 1992, was discussed, and the Petitioner assured the inspector that staffing was adequate. They then discussed the incident itself. The Petitioner reported that the infant choked while the Petitioner was sitting in a rocking chair, holding the infant in her arms and feeding the infant. On August 19, 1992, the HRS inspector was instructed to return to the Petitioner's facility for documentation of proper staffing on August 14, 1992. When the HRS inspector arrived, the Petitioner was being interviewed by Manatee County Sheriff's office personnel. While the law enforcement interview was going on, the HRS inspector was able to observe that 18 preschool children were unattended in the bedroom of the Petitioner's son, an unlocked room that officially was not part of the facility. She also was unable to obtain any documentation that the facility was properly staffed on August 14, 1992. The HRS inspector prepared a Child Day Care Inspection Checklist for August 19, 1992, reporting that 18 children were not under direct supervision and that there were 36 children at the facility, six more than the maximum capacity for which the Petitioner's facility was licensed. On August 20, 1992, the HRS inspector returned to the facility because the Sheriff's office had referred the matter to HRS and HRS investigators were at the facility conducting interviews of the facility's staff. One member of the staff informed the HRS personnel that, on the day the infant died, the infant had been left in one of the rooms at the facility without direct supervision at least one time for approximately 30 minutes. When the Petitioner was confronted with the staff member's statement, the Petitioner confessed that she had made, and had been repeating, a false report as to what had occurred on August 14, 1992. In fact, the infant did not die of an accidental choking while the Petitioner was holding the infant in her arms. Rather, the infant was in one of the rooms at the facility without direct supervision; when the Petitioner entered the room and discovered that the infant was not breathing, she called 911 and tried to rescusitate the infant. She stated that she had made, and had been repeating, the false report on the incident in order to personally assume responsibility and to protect her staff from being made responsible. During a prior routine inspection on July 29, 1992, HRS cited the Petitioner for several violations, including insufficient staff ratio, in violation of F.A.C. Rule 10M-12.002(5)(a)(1), and failure to directly supervise, in violation of F.A.C. Rule 10M-12.002(5)(a)(2). On a reinspection on August 12, 1992, the deficiencies cited on July 29, 1992, were corrected; but, in light of the facts HRS learned on August 20, 1992, it appeared that two days later, on the day the infant died, the Petitioner was out of compliance again. In addition, similar violations were observed during inspections on January 13, 1992, and on April 12, 1989. Like all of the other minor violations observed during inspections of the Petitioner's facility over the years, the staff ratio and direct supervision violations were corrected by the time of the following inspection. In response to the inspection report for August 19, 1992, the Petitioner prepared a list of the facility's weak points and steps initiated to correct them. The Petitioner also voluntarily closed her day care center pending the completion of the HRS investigations. Underlying Administrative Proceedings On September 15, 1992, HRS filed an Emergency Final Order suspending the Petitioner's license. On September 21, 1992, HRS filed an Administrative Complaint. The Petitioner requested formal administrative proceedings on the Administrative Complaint, and it was referred to the Division of Administrative Hearings (DOAH), where it was given DOAH Case No. 92-7148. Both the Emergency Final Order and the Administrative Complaint alleged the death of the infant and the false initial report and alleged that the infant actually was left alone without supervision for 30 minutes. Both also alleged that, during HRS' investigation of the incident on August 19, 1992, the following "items of noncompliance" were discovered: The center had 18 school aged children in part of the facility with no staff or direct supervision. This is a violation of Rule 10M-12.002(5)(a)2, F. A. C. The total number of children in the facility was 36, which exceeded the maximum licensed capacity of 30 for the facility. This is a violation of Rule 10M-12.001(2)(j), F. A. C. The staff-to-child ratio was not correct. This is a violation of Rule 10M-12.002(5)(a)1, F. A. C. Both also alleged all of the prior violations found during the inspection history for the facility. On or about October 24, 1992, based on the same information on which the Administrative Complaint was based, HRS gave notice of intent to deny the application which the Petitioner had filed for renewal of her child day care facility license. The Petitioner requested formal administrative proceedings on the intended denial, and it was referred to DOAH, where it was given DOAH Case No. 92-7447, assigned to the same hearing officer as Case No. 92-7148, and consolidated for further proceedings and for final hearing. Final hearing was held on May 12, 1993. The Recommended Order entered in Case Nos. 92-7148 and 92-7447 on May 28, 1993, found the Petitioner not guilty on all charges in the Administrative Complaint and recommended that her license be renewed "forthwith." Among other things, the Recommended Order found: The only charges in the Administrative Complaint regarding this incident [i.e., the death of the infant] is [sic] contained in paragraphs 5 and 8 of the Administrative Complaint. Paragraph 5 alleges the baby died and paragraph 8 alleges that Respondent had provided the sheriff's department with misinformation regarding the infant choking while she was feeding him and that this infant had been left alone for 30 minutes without supervision before being noticed by Respondent. No credible evidence to support the lack of adequate supervision of this infant before its death was presented. The discrepancies found during the quarterly inspections of the facility for the past 3 1/2 years were predominantly minor offenses such as inadequate record keeping, failure to document all staff had received prescribed training or innoculations, lack of current vehicle driver certificate, unsafe outdoor equipment, or minor food service violations, failure to provide employee background screening, inadequate staff to child ratio, inadequate bathroom supplies, and lack of immunization records. These are all classified as Class III violations as defined in Rule 10M-12.011(7)(c), Florida Administrative Code. * * * During the investigation at this day care center following the infant's death, and while the sheriff's deputies were on the scene questioning Respondent and her employees, three additional violations are noted in paragraph 7 of the Administrative Complaint. The first of these allege the center had 18 children in part of the facility with no staff present in the room. At the time this infraction occurred Respondent was out on the patio being interrogated by a deputy and another deputy had called the aide supervising the 18 children out of the room to question her. When Respondent returned inside the center and observed the aide being questioned by the deputy she sent another aide into the room with the 18 school age children. The second allegation was that there were 36 children in the facility although the center was licensed for only 30. Without attempting to justify the violation Respondent testified that this occurred a day or two before school started when the teachers had to be at school but the pupils did not. These excess children were children of teachers who requested Respondent to take them during the time these teachers had to be at school. As a favor to these mothers who had previously used her day care center Respondent temporarily exceeded her authorized number of children. The third violation resulted when Respondent left the children she was supervising to open the door to admit the HRS inspector who supervised the facility. While Respondent was opening the door to let the inspector into the facility the proper ratio of staff to child was not maintained. In response to the inspection reporting the lack of supervision of the 18 school age and excess children in the facility (Exhibit 20) Respondent prepared a list of the facility's weak points and steps initiated to correct them (Exhibit 23). law: On August 28, 1992 Respondent voluntarily closed her day care center pending the completion of all investigations (Exhibit 24). Among other things, the Recommended Order concluded, as a matter of Neither paragraph 5 nor 8 of the Administrative Complaint alleges a violation of either Section 402.310, Florida Statutes or Rule 10M-12.011, Florida Administrative Code which list the grounds for disciplinary action. Since all of the violations charged in the Administrative Complaint were corrected within the prescribed time frame, none of these violations constitute grounds for levying an administrative fine. (Class II violations, if timely corrected, are also not subject to the assessment of a fine) A fortiori, they do not constitute grounds for revocation or refusal to renew a license. Obviously the death of an infant at Respondent's facility on August 14, 1992 led to the decision to deny renewal of the license and the filing of the Administrative Complaint to revoke the license. However, there is no evidence linking any act of Respondent with the death of this infant. There is no dispute that the infant died of SIDS. The infant stopped breathing and had the aide been in the room at the time the infant stopped breathing it is unlikely this would have been noticed had the aide not been looking closely at the child. * * * 24. Even if the minor violations charged in the Administrative Complaint could now be considered to be grounds for revocation, Section 402.310(1)(b), Florida Statutes provides: In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered: The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of this part have been violated. Actions taken by the licensee to correct the violations or to remedy complaints. Any previous violations of the licensee. All of the violations charged in the Administrative Complaint are minor and were corrected forthwith. Respondent submitted a proposed plan to inhibit further violations by increasing staff and preparing written orders for staff guidance. As noted above this is the first Administrative Complaint ever filed against Respondent. From the foregoing it is concluded that there are no violations listed in the Administrative Complaint which were not timely corrected; that once timely corrected these alleged violations do not constitute grounds for further disciplinary actions; and Petitioner has failed to prove, by clear and convincing evidence, or even by a preponderance of the evidence, that Respondent committed any act which constituted grounds for revocation of her license. Over objection, the HRS Secretary allowed its personnel involved in the administrative litigation to file exceptions after the procedural deadline for filing exceptions. HRS' Final Order was rendered on November 1, 1993. It granted an exception to the finding in paragraph 8 of the Recommended Order on the ground that paragraph 4(o) of the Administrative Complaint also was a charge "regarding this incident" in that it charged the Petitioner "with filing a false police report." It also granted an exception to the finding in paragraph 9 of the Recommended Order on the ground that "there was insufficient evidence adduced upon which to base a finding of fact that inadequate staff to child ratios or lack of direct supervision constitute minor discrepancies." (It also was held that "it is the department's duty, not the Hearing Officer's, to interpret what is and is not a minor discrepancy.") The Final Order also observed: The AC also does not charge lack of direct supervision of the dead child. Therefore, the decision in this case does not turn on that issue. The Final Order also granted an HRS exception to part of paragraph 22 of the Recommended Order to the extent that it implied that HRS took action only because of the death of the child. The Final Order noted: "Although the child died from SIDS, counsel for the department is correct in pointing out that if the child had been under direct supervision at all times, the child might still be alive." In a footnote, the Final Order added: "If the department had alleged in the AC a specific lack of direct supervision as to the deceased child, and proved it at the hearing, this case might have turned out differently." Finally, the Final Order granted an exception disagreeing "with any general rule that once timely corrected, previous violations no longer constitute grounds for further disciplinary action." The Final Order observed: The violations cited and corrected over the 3.5 year period preceding the AC in this case are not sufficient to support denial or revocation of a license. That is not to say that in a proper case, previously corrected violations cannot support later disciplinary action. Having granted the foregoing exceptions, the Final Order's disposition of the case was: Based upon the foregoing, it is ADJUDGED, that Alice P. White, d/b/a Miss Patty's Day Care Center is not guilty of the charges legally alleged in the Administrative Complaint. The charge of giving false information to the police is not a violation, under these facts, of the child care licensure statute or rule. It is further ADJUDGED that the license to resume operations be issued forthwith . . .. The Final Order was not appealed. On December 16, 1993, the HRS personnel involved in the prosecution of the administrative proceedings moved for clarification of the Final Order and for remand to DOAH. This action was not appropriate, and on December 29, 1993, the Petitioner initiated action to enforce the Final Order by notifying HRS and the Attorney General of the Petitioner's intent to file an enforcement action under Section 120.69, Fla. Stat. (1993), as required by the statute. On January 14, 1994, an Order Clarifying Final Order was rendered, but in substance the order explained why no clarification was necessary and why the Final Order should be implemented. On or about January 24, 1994, HRS issued the Petitioner a "provisional license." Reasonable Attorney Fees The reasonable amount of time and labor required on this case was approximately 93 hours. (This does not include time spent after entry of the HRS Final Order.) HRS' expert questioned the 93 hours as being perhaps excessive, but she also conceded that she would not question the veracity of representations made by counsel for the Petitioner and that she only had a short period of time in which to study and consider the matter. The legal questions involved in the Petitioner's case were not particularly novel. The most novel question occurred after entry of the Final Order, when HRS inappropriately sought clarification of its own Final Order, and this should be taken into consideration in determining the appropriate fee. In addition, representation of the Petitioner was made difficult by her false reports as to the cause of death of the infant and her subsequent admission to the false reports. A fairly high level of skill was required to perform the legal service properly. The extensive general trial practice experience of counsel for the Petitioner enabled him to perform the service well even though he did not have exceptional experience specifically in the area of administrative law. He also was required to advise the Petitioner on related criminal, tort and bankruptcy matters, and his skills enabled him to do so. Not every specialist in administrative law would have been able to do as good a job in those areas. However, his lack of experience in the area of administrative law required him to expend considerable time devoted to researching pertinent law. There was no evidence that counsel's acceptance of the Petitioner's case precluded other employment. To the contrary, the evidence was that counsel is known for accepting notorious cases and that his practice is not adversely affected by this. The customary fee in Manatee County for handling a case like the Petitioner's ranges anywhere from $135 to $200 an hour. Counsel's fee for handling the Petitioner's case was totally contingent on any sums recoverable from HRS under any applicable statute for the award of attorney fees. If no award is recoverable, he would not expect the Petitioner to pay him any fee. The Petitioner was emotionally distraught during counsel's representation. This presented special problems in the representation and required counsel to expend more time than might otherwise be required for a case like the Petitioner's. Otherwise, the Petitioner's case did not impose any unusual time limitations on counsel. There was no amount of money at issue in the Petitioner's case. But at issue was the Petitioner's licensure, which was her means of earning a living. As for the results obtained, counsel's representation was, in the words of his expert, "devastatingly successful." In fact, it is not clear how counsel was able to achieve such a "devastatingly successful" result on the facts and law of the case. The key seems to have been in persuading the hearing officer and, ultimately, HRS that the Administrative Complaint did not allege lack of direct supervision or improper staff ratio on August 14, 1992, and in persuading the hearing officer that the Petitioner's false reports were of no consequence in the licensure proceeding. See Conclusions of Law 35-36, infra. To the extent not already addressed, the evidence was clear that the experience, reputation, and ability of the Petitioner's attorney is very good. The Petitioner's case would have to be classified as "undesirable." The case was notorious in the community. It involved the Petitioner's false reports as to the cause of death of an infant, to which the Petitioner later admitted. In addition, the Petitioner had no money to pay legal fees. If counsel had not taken the case on the generous terms he did, the Petitioner probably have had serious difficulty obtaining legal representation. Before agreeing to represent the Petitioner in her case, counsel had no prior professional relationship with her, and no future financially rewarding professional relationship with the Petitioner can be anticipated. There was no evidence of any awards in previous cases. Based on the foregoing factors, it is found that a reasonable attorney's fee for counsel representation of the Petitioner in her licensure proceedings is $18,600 (93 hours at $200 per hour.)
The Issue The issue is whether Respondent committed a Class I violation and should have a $500.00 administrative fine imposed, for the reasons given in the Administrative Complaint dated August 23, 2018.1/
Findings Of Fact The Department is the state agency responsible for licensing and regulating child care facilities. Respondent holds license number C12MA0082 issued pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Chapter 65C-22. It authorizes Respondent to operate a child care facility at 3815 26th Street West, Bradenton, Florida. The owner of the facility is Carina Piovera. First licensed in 1997, the facility provides child care for children ranging from the age of one to five. It employs five teachers and has a capacity of 35 children. Besides routine inspections by the Department every three months, for the last ten years, the facility has been inspected periodically by the Early Learning Coalition, which provides the facility with funding vouchers for families that cannot pay for full child care. Prior to this incident, Respondent never has been charged with a Class I violation. This class of violation is the most serious in nature and is one that could or does result in serious harm or death to a child. Fla. Admin. Code R. 65C-22.010(1)(e)1. Based on a complaint by a parent that Ms. Piovera used excessive discipline on her 18-month-old son, A.M., the Department conducted a two-hour complaint inspection on June 20, 2018. The inspection resulted in the issuance of an Administrative Complaint alleging that Ms. Piovera used "inappropriate discipline" on the child, in violation of section 2.8A. and F., Child Care Facility Handbook (Handbook), incorporated by reference in rule 65C-22.001(6). The first section requires generally that a child care facility adopt a "discipline policy" that is consistent with section 402.305(12), while the second provision enumerates discipline techniques that are prohibited. The "inappropriate discipline" is described in the Administrative Complaint as follows: On May 30, 2018, K. Alejandra-Pacheco, a child care personnel, worked on an art project with one of the children in her care, while the other children were climbing up and down the chairs and taking off their shoes. Ms. Alejandra-Pacheco stated that she is not allowed to discipline the children, only the facility director, Carina Piovera. Ms. Piovera came into the classroom and made the children sit down. A.M., a one-year old toddler, was one of the children in the classroom. In it, Ms. Piovera is seen roughly handling A.M. by grabbing him, aggressively wiping his nose, having intense body language when talking to the child, forcefully pushing the child's chair into position at the table, and then aggressively put his hands on the table. A.M. is visibly afraid and upset, crying throughout his interaction with Ms. Piovera, who appears to be intimidating to the child. This incident was recorded by the facility camera. The Department employee who conducted the inspection did not testify at the hearing. However, a Department witness who viewed a video of the incident alleges that Ms. Piovera "used excessive force during hygiene and behavior redirection," and this was "severe, humiliating, or frightening to the child." The alleged incident occurred in the facility's toddler room. Six children, ranging in age from one to two years old, were in the room, along with a teacher, Ms. Pacheco. A surveillance camera, reloaded every 24 hours, is installed in each classroom to monitor all activities. The video is erased every 30 days by the security company, Swann Communication (Swann). If parents wish to watch their children in real time or within the 24-hour window before the camera is reloaded, they can download an application (app) on their cell phone, view the toddler room, and even make copies of the video. Ms. Piovera stated that she is "very comfortable" with video cameras in each classroom because parents are entrusting their children to her care and want to see how they are being treated. Although the original surveillance video long since has been erased, A.M.'s mother recorded a video of the incident on her cell phone using an app provided by a third party and not Swann. The video has been accepted in evidence as Department Exhibit 2. The video is fairly clear, is a "little fast," and is the only known recordation of the incident still available. Ms. Piovera testified that she has watched it more than 20 times. The Department's allegations are based wholly on its interpretation of the cell phone video. The incident itself lasts less than a minute. A.M., then 18 months old, and not a one-year-old, as stated in the Administrative Complaint, frequently had allergies or nasal problems, which caused a runny nose or cough. His mother authorized the use of a nebulizer for inhaling medications, but it never was used at the facility. The morning of May 30, 2018, was no different, and A.M. came to the facility that day with a runny nose. Although the mother denied her son had allergies, his runny nose was brought to her attention when she brought the child in that morning. She replied that she had been giving him medicine but "nothing was working." Around 10:21 a.m., and not 11:00 a.m., as stated in the Administrative Complaint, Ms. Piovera entered the toddler room to assist Ms. Pacheco in redirecting the children to a new activity, i.e., to sing a song and do art work, after efforts by Ms. Pacheco to have the children sit down and keep their shoes on were unsuccessful. Redirection is considered a form of discipline by the Department, but Ms. Piovera considers moving to a new task a routine action in caring for toddlers. Just before Ms. Piovera entered the room, A.M. and two other children were standing in their chairs and climbing onto the table. When A.M. saw Ms. Piovera enter the room, he immediately sat down in the chair. Ms. Piovera placed him in an upright position, adjusted his pants, and observed that his nose needed to be wiped and he had taken one shoe off. His nose had crusted mucous and the discharge was green. The child was crying at this point. The mother acknowledged that A.M. does not like having his nose wiped. Ms. Piovera needed two swipes with a tissue to clean A.M.'s nose. His feet lifted slightly when his nose was wiped, but this was because A.M. was trying to avoid having his nose cleaned. Ms. Piovera also put his shoe back on. Although A.M. began crying when she first touched him, no unusual force or pressure was used, and there were no marks or bruises on the child. Within a few seconds after his nose was cleaned, A.M. became calm, stopped crying, and placed his head on the table. The class then continued with painting activities. A Department witness acknowledged that there was no hitting, spanking, shaking, slapping, or pushing. However, based on her viewing of the incident, she contends Ms. Piovera "kind of twisted his body," "pulled his arms when she first grabbed him to get him to sit down in his chair," "appeared [to be] squeezing his arms," and "felt" there was "forcing or restricting movement" when she turned the child around. There is less than clear and convincing evidence to support these allegations. Around 2:15 p.m., the child was picked up by his mother. Although the mother had viewed the incident on her cell phone as it happened, she did not say anything to Ms. Piovera at that time or contact the Department to discuss any concerns.3/ Notably, when the incident occurred, the mother was in a dispute with Ms. Piovera over an unpaid bill ($1,345.00), which Ms. Piovera says still is outstanding. The mother contends the bill has been paid, but Ms. Piovera says the dispute is headed to small claims court. The mother withdrew the child from the facility that day without giving any explanation to Ms. Piovera, and he never returned to the facility. On June 13, 2018, A.M.'s mother raised the May 30 incident with Ms. Piovera for the first time in a series of text messages. Around the same time, she posted the video in a message on her Facebook page. On June 20, 2018, or three weeks after the alleged violation, A.M.'s mother reported the incident to the Department. The mother admits she always was behind in her payments, and, on the day she filed her complaint, she was asked by Ms. Piovera to stop by the facility and pay the balance owed. The Department requested that a child protective investigator (CPI) from the Manatee County Sheriff's Office investigate whether child abuse occurred. A Department representative and the CPI conducted a joint inspection on June 20, 2018. On July 16, 2018, the CPI issued a finding that the charge was unsubstantiated. Resp. Ex. A. Notwithstanding the CPI's determination, the Department points out that this proceeding involves a violation of Handbook standards, while the CPI was looking for indicators of abuse, which are governed by chapter 39. Thus, it contends that the CPI could have a non-substantiated finding in regards to abuse, but Ms. Piovera still could be cited for a rule violation.
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 dismissing the Administrative Complaint, with prejudice. DONE AND ENTERED this 8th day of May, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2019.
The Issue The issues to be determined are whether Respondent committed the violations as alleged in the Administrative Complaint (AC), and, if so, the appropriate penalty.
Findings Of Fact DCF is the state agency responsible for licensing child care facilities and enforcing regulations to maintain the health, safety, and sanitary conditions at those facilities operating in the State of Florida. See §§ 402.305-.311, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010. In order to fulfill its regulatory duty, DCF conducts complaint and routine inspections. The factual allegations, as stated in the AC, provide the following: a. On December 20, 2018, the Department received an allegation that the owner/ director of the facility hit a child on the face with a ruler and slapped him. The teacher also hit another child on the chest with a ruler and that a child had slight bruising and a round scratch under his left eye. The Department conducted an investigation into these allegations starting on December 28, 2018. At the conclusion of the investigation, the Department determined the facility committed Class I violations of child care facility standards for child abuse and unscreened individuals. Licensing Counselor, Tiffani Brown, along with a Child Protective Investigator (CPI) Barbara Smith commenced their investigation on December 28, 2018, after the facility reopened from the holidays. They met with the owners [sic] daughter, Danita Gaines and spoke to the owner via the phone. While at the facility, Counselor Brown questioned Anthony Council, who stated he does help take care of children. Mr. Council was located in a room with children present. Mr. Council is not background screened and was ordered to leave. The owner, Cloe Gaines was on vacation and would not return until 1/2/19. Counselor Brown and CPI Smith returned to the facility on 1/2/19 to speak to the owner. Ms. Cloe Gaines was interviewed, and she stated she is a foster parent. Due to the allegations, Ms. Cloe Gaines was handed a restriction letter, which she signed and left the facility. Counselor Brown and CPI Smith interviewed Ms. Cloe Gaines [sic] foster children. The first foster child, G.M. said for punishment Ms. Cloe Gaines makes him go to sleep. The second foster child, M.M. continued to nod her head indicating yes when asked if he gets spanked for punishment. Counselor Brown and CPI Smith interviewed four other children at the facility. The first child, A.J. stated that Mrs. Cloe whips them with a belt or ruler on the arms and hands. The second child, A.J. stated that Mrs. Cloe hits people if they be bad. The third child, O.E. said that Mrs. Cloe hits them if they are bad with a blue ruler that she keeps in her desk. The last child, T.J. stated that they get hit with a pink and purple ruler that is kept in the classroom. The children were taken to be interviewed by the Child Protection Team for forensic interviews, which were again verified. Based upon the factual allegations in paragraph 3 above, the AC asserts that those allegations constitute the following Class I violations: a. On January 4, 2019, Anthony Council, is an unscreened individual who was left alone to care for children, in violation of Section 435.06(2)(a), Florida Statutes. This constitutes a Class I violation of Child Care Licensing Standard, CF-FSP Form 5316, 4-18, October 2017, incorporated by reference, 65C-22.010(1)(e)l, F.A.C. b. The owner, operator, employee or substitute, while caring for children, committed an act or omission that meets the definition of child abuse or neglect as provided in Chapter 39, Florida Statutes in that four children disclosed child abuse at the hands of the owner Cloe Gaines. A.J., A.J., O.E., and TJ. [sic] disclosed that they are victims of child abuse by Ms. Gaines when she hits them with belts and rulers as a form of discipline in violation of CCF Handbook, Section 8.2, A. This constitutes four (4) Class I Violations of Child Care Licensing Standard, CF-FSP Form 5316, 47-02 and ll-06, October 2017, incorporated by reference, 65C- 22.010(1)(e)1, FAC. Respondent was licensed by DCF to operate a child care facility located at 1550 King Street, Cocoa, Florida. During the hearing, it was disclosed that the Academy had been closed for at least a month. Cloe Gaines (Ms. Gaines) is the owner/director of the Academy. Danita Gaines, Ms. Gaines’ daughter, has worked at the Academy since 2015 as a teacher in the two-year-old classroom. Anthony Council is Ms. Gaines’ grandson and performed maintenance several times at the Academy when asked to do so by Ms. Gaines. Additionally, Mr. Council has a son who attended the Academy. On December 20, 2018, DCF received allegations that Ms. Gaines had hit a child on the face with a ruler. On December 21, 2018, DCF attempted to investigate the alleged child abuse complaint. However, the Academy was closed for winter break, and scheduled to reopen on December 28, 2018. Child Protective Investigator (CPI) Smith, a 13-year DCF employee, located two of the alleged victims of the Academy at their respective homes on December 21, 2018. CPI Smith interviewed B.T., a four-year-old male, who stated that he and his cousin, T.J., were arguing at the Academy. Ms. Gaines called on them and she struck B.T. on the face with a ruler, which caused B.T.’s face to bleed. B.T. stated that T.J. raised his arm in front of his chest and T.J. was struck on his arm. Based on B.T.’s comments, CPI Smith requested that B.T. be taken to the Children’s Advocacy Center of Brevard (CACB) for a video-recorded interview. During the video-recorded interview, B.T. was forthcoming about the injuries he sustained at the Academy. B.T. again stated that he and T.J. were arguing and playing, and Ms. Gaines hit him (B.T.) on the face with a ruler, which caused his face to bleed. B.T. said Ms. Gaines gave him a band-aid for his face. Pictures taken of B.T. on December 21, 2018, show the injuries B.T. sustained. CPI Smith substantiated or verified the abuse of B.T. by Ms. Gaines. B.T. also told CPI Smith where Ms. Gaines kept the ruler she used to hit him. When CPI Smith returned to the Academy, she located the blue ruler in Ms. Gaines’ desk drawer. Another alleged victim, T.J., was also interviewed at his residence on December 21, 2018. T.J. recounted that he and B.T. were playing and fighting when Ms. Gaines called them. T.J. provided that Ms. Gaines hit B.T. on the face, and that he, T.J., was hit on the arm with a ruler. CPI Smith was unable to substantiate abuse of T.J. because there were no physical indicators on T.J. at the time of the interview. CPI Smith and Tiffani Brown, a DCF child care regulation counselor and licensing counselor, returned to the Academy when it reopened on December 28, 2018, to investigate the child abuse allegations. Ms. Gaines was not present, but the DCF employees spoke with Danita Gaines, who said Ms. Gaines was on vacation and would return on January 2, 2019. The two DCF employees returned to the Academy in January 2019. When CPI Smith returned to the Academy, she interviewed two other alleged victims, twins A.J. and AK.J. AK.J., the male twin, provided that Ms. Gaines was mean, whips students on the arms and hands, and will make them stand by the wall with their hands raised over their heads. As a result of his interview at the Academy, AK.J. was asked to go to the CACB for a video- recorded interview. A.J., the female twin, stated that Ms. Gaines hit her (A.J.) on her hands and arms with the ruler, and makes them (the children) stand beside the wall, “if they be bad.” CPI Smith asked that A.J. be taken to CACB for a video-recorded interview also. In AK.J.’s video-recorded interview, he provided the name of his favorite Academy teacher, but stated that he did not like Ms. Cloe (Ms. Gaines) because she was mean and “pops” people with a ruler. AK.J. said he was scared of Ms. Gaines; the ruler was hard; and it hurt when he was struck. During A.J.’s video-recorded interview, she recounted that Ms. Gaines and her daughter, “Ms. Danita,” were mean. A.J. also stated Ms. Gaines “whooped” her (A.J.) with a ruler and at times Ms. Gaines made all the children stand at the wall with their hands raised over their heads. On January 2, 2019, Counselor Brown, a DCF employee of nine years, observed Mr. Council walking outside the Academy with several students following him. Mr. Council does not have the required background screening approval to care for children in a daycare setting, and a background screened teacher was not present when Counselor Brown first observed Mr. Council. The background screened teacher appeared a minute or so later. During the hearing, Mr. Council provided that he was at the Academy daily, either dropping off or picking up his son. Mr. Council further testified that he performed various maintenance tasks that Ms. Gaines asked him to perform, such as changing filters for the air-conditioning vents and policing the playground, all while children were present. Mr. Council admitted that Ms. Gaines had told him (Mr. Council) to get the required background screening completed, but he had not done so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order revoking the license of CG Academy. DONE AND ENTERED this 4th day of June, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 4th day of June, 2019.
The Issue Whether Respondent, a licensed child care facility, committed two Class I violations as alleged in the Administrative Complaint; and, if so, the appropriate penalty, including whether Petitioner may terminate Respondent's participation in the Gold Seal Quality Care program.
Findings Of Fact The Department is the state agency responsible for licensing and regulating child care facilities in the state in Florida. StarChild is a licensed child care facility located in Apopka, Florida. StarChild is designated as a Gold Seal Provider and has a contract with the Early Learning Coalition to provide school readiness services. As a designated Gold Seal Quality Care Provider, StarChild is subject to the provisions of section 402.281, Florida Statutes. In order to obtain and maintain a designation as a Gold Seal Quality Care provider, a child care facility must not have had any Class I violations, as defined by rule, within the two years preceding its application for designation as a Gold Seal Quality Care provider. § 402.281(4)(a), Fla. Stat. "Commission of a Class I violation shall be grounds for termination of the designation as a Gold Seal Quality Care provider until the provider has no Class I violations for a period of two years." § 402.281(4)(a), Fla. Stat. 1 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day timeframe for issuance of the Recommended Order. See Fla. Admin. Code R. 28-106.216. As of the date of the final hearing, StarChild had never had a Class I violation. The May 5, 2020, Incident At all times relevant to this case, CJ was a two-year-old boy who attended StarChild. On May 5, 2020, CJ, along with several other children and two teachers, were in a two-year-old classroom at StarChild. The actions of the children and a teacher, Ms. Crisman, were recorded by a surveillance camera mounted in the room. The factual allegations in the Administrative Complaint are primarily based on an incident captured on video. In the video, CJ is seen interacting with other children in the room. The children are all engaged in different activities; some are standing while others are sitting on the floor. CJ stood near a group of children who were sitting on the floor in close proximity to Ms. Crisman, who also sat on the floor. CJ walked up behind another child who sat in front of Ms. Crisman. CJ placed his hands on the other child's shoulders. The other child turned his torso toward CJ, while still sitting, and pushed CJ away from him. This was by no means a hard push. CJ stumbled into a seated position and then immediately thereafter laid on his back. CJ remained laying on his back for approximately five to ten seconds, during which he playfully kicked his feet. Ms. Crisman stood up from her seated position, walked over to CJ, and stood over him. She then grabbed CJ by both wrists and forcefully yanked him off the ground. It is clear from the video that Ms. Crisman used great force when she pulled CJ off the floor—CJ's feet flew up in the air and his head flew back. Ms. Crisman then pulled CJ, by his wrists, approximately ten feet across the room, and placed him in a corner in timeout. CJ sat in the corner clutching his arm. Zuleika Martinez (Ms. Martinez) was one of the two teachers assigned to CJ's classroom. She was not present during the incident, but came back to see CJ sitting in timeout. Ms. Martinez noticed that CJ was favoring one hand over the other. Approximately 30 minutes after noticing this, Ms. Martinez notified Deborah Files (Ms. Files). Ms. Files has been employed by StarChild since March 2005, and has been serving as the Director of StarChild since April 2020. Ms. Files walked over to the classroom to check on CJ and speak to Ms. Martinez. She learned that CJ was holding his arm and he would not use it for play or to eat. Ms. Files brought CJ into StarChild's front-desk area—the area typically used for children who are not feeling well. Ms. Files iced CJ's arm. Shortly thereafter, Ms. Files contacted Shelby Feinberg (Ms. Feinberg). At the time of the incident, Ms. Feinberg was the Executive Director of StarChild. Ms. Feinberg was working remotely and, therefore, not at StarChild's facility. Ms. Files explained to Ms. Feinberg that CJ appeared to be having difficulty utilizing one of his arms. Ms. Feinberg advised Ms. Files to contact CJ's parents. Ms. Files contacted CJ's mother, Meghan Jones, at approximately 11:00 a.m. Ms. Files reported to the mother that CJ was favoring one arm, and that he was not using the other arm at all. Ms. Files encouraged Ms. Jones to pick CJ up. At approximately 12:30 p.m., CJ's father, Kurt Jones (Mr. Jones), arrived at StarChild to pick CJ up. Mr. Jones found CJ in the classroom, lying on the floor. He told CJ to get up. CJ attempted to push himself up off the floor but was unable to do so. CJ appeared to be in pain and unable to support his body weight on his arm. It was clear to Mr. Jones that his son was in pain. Mr. Jones had difficulty getting CJ strapped into his car seat. Mr. Jones drove CJ to their home, which was five minutes away. When at home, Mr. Jones noticed that CJ still appeared to be in pain. Mr. Jones noticed that CJ would not move or touch his arm. He was holding his arm as if it was in a sling. CJ would periodically cry. Mr. Jones grew worried as his son still appeared to be in pain and did not seem to be getting better as time passed. Mr. Jones considered taking CJ to the emergency room but decided against it because of concerns related to the COVID-19 pandemic. He could not take CJ to his primary care pediatrician as there were scheduling difficulties also tied to the COVID-19 pandemic. The family's usual after-hours urgent care pediatrics office did not open until 4:00 p.m. At approximately three or four hours after picking CJ up from StarChild, Mr. Jones, with few options, searched for help on the internet. He researched possible causes of CJ's pain and why he was holding his arm like a sling. After watching several videos, he came across a YouTube video made by a nurse who described a condition called "nursemaid elbow." A nursemaid elbow is a dislocated elbow. The symptoms matched what CJ was experiencing and Mr. Jones determined CJ had dislocated his elbow. The video provided instructions on how to correct the nursemaid elbow. Desperate to help his son who was still in pain, he attempted the procedure to put CJ's elbow back in place. Mr. Jones followed the instructions. He heard a "pop" noise, which was to be expected per the instructions in the video. CJ cried for ten to 15 seconds. Thereafter, CJ regained full mobility of his arm and no longer appeared to be in pain. CJ began acting like his typical self. The next day, Mr. and Mrs. Jones took CJ to his pediatrician. CJ was diagnosed with nursemaid elbow. They were advised that the procedure that Mr. Jones conducted the previous day was the correct one. The Department conducted an investigation of the incident. As part of its investigation, the Department scheduled an examination of CJ by its Child Protective Team (CPT). Margarita Diaz (Nurse Diaz) is a pediatric nurse practitioner who works for CPT. She has been with CPT for three years. She has received extensive training in child abuse. On May 7, 2020, she did a complete head- to-toe examination of CJ. She reviewed the history of CJ's injury provided by CJ's parents and collateral information which included the video of the incident. She diagnosed CJ as having suffered a nursemaid elbow due to child abuse. Nurse Diaz described a nursemaid elbow as a condition that occurs when the ligament in the elbow gets trapped between two bones. When a child's arm is pulled away, the tendon slips down. When the arm goes back into place, the tendon gets stuck between the humerus and the radial bones. When this condition happens, it is usually very painful for the child. The child often presents as protective of the arm and will not move it. Nurse Diaz further testified that the most common mechanism of injury is when a child is pulled. Other mechanisms for injury include swinging or lifting a child by the arm. She testified that a nursemaid elbow is easy to correct and once corrected, a child is back to normal in five to ten minutes. Nurse Diaz testified that her finding of child abuse was based on her observations of the actions of the teacher as shown in the video. She confirmed that the actions of the teacher in the video were consistent with the infliction of a nursemaid elbow injury on CJ. StarChild's Response to Incident When Ms. Martinez reported CJ's injury, StarChild took immediate action to address the situation. They removed CJ from the classroom, tended to his injuries, promptly contacted his parents, and set out to find out the cause of the injury. StarChild administrators watched video footage of the activity leading up to CJ's change in behavior. In reviewing the video, StarChild determined that Ms. Crisman used improper form by lifting CJ by his wrists when moving CJ to the timeout corner. By noon on the same day of the incident, StarChild terminated Ms. Crisman's employment. StarChild then contacted the Department to report the incident. Mr. Jones made a request to review video footage of the incident. Danny King, the owner of StarChild, reached out to Mr. Jones personally and agreed to meet with him and Mrs. Jones to review the video together in person. The parents were informed that Ms. Crisman was terminated. Following the incident, StarChild developed a self-imposed Corrective Action Plan, that included re-training its entire staff. Ms. Feinberg met with all members of the staff and conducted in-person training in small class settings. All staff members were provided StarChild's discipline policy and child interaction policies. Staff members were also required to take a child abuse and training course. StarChild re-wrote its staff handbook to include stronger and clearer language about how children are to be moved and repositioned in the classroom. Additionally, StarChild implemented permanent policy changes which required discussions during weekly staff meetings about behavior and how staff members should positively deal with behavior in the classroom. All staff members were also provided with information on nursemaid elbow, specifically. StarChild has current plans to bring in guest speakers, such as a behavior management professional and a CPT speaker, to further educate their staff members. StarChild acted commendably in response to the incident. It took immediate and comprehensive action to try to reduce the probability of an incident like that occurring again. It must be noted that complete prevention is an impossibility. CJ continued to attend StarChild after the incident. Indeed, he attended StarChild the day after the incident and appeared to be in good spirits. CJ's younger sister was also enrolled at StarChild after the incident, when she was three-and-a-half months old.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families impose a fine of $100.00 against StarChild and revoke its designation as a Gold Seal Quality Care provider. DONE AND ENTERED this 19th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Brian Christopher Meola, Assistant General Counsel Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801 Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2021. Lucia C. Pineiro, Esquire Lucia C. Pineiro & Associates, P.A. Suite 309 717 Ponce de Leon Boulevard Coral Gables, Florida 33134 Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
