The Issue The issues in this case are whether Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from disqualifying offenses, and whether Respondent’s intended agency action to deny her request for an exemption from disqualification is an abuse of discretion.
Findings Of Fact Parties Respondent is the state agency responsible for regulating employment of persons who provide direct service to APD clients. APD clients are a vulnerable population of individuals whose developmental disabilities include intellectual disability, autism, spina bifida, cerebral palsy, Prader-Willi syndrome, and Down syndrome. Respondent’s clients are often incapable of adequately communicating their needs or whether they have been harmed. Therefore, employment as a direct service provider to Respondent’s clients is considered a position of trust. A person seeking employment in a position of trust must undergo a pre-employment Level 2 background screening to ensure the person has not been convicted of crimes that may pose a threat to vulnerable persons. Petitioner is a 35-year-old female who seeks to qualify for employment with a direct service provider (Right Direction Christian Center, Inc.) in a position of trust. The position for which she applied required that she undergo Level 2 background screening. The Level 2 background screening revealed that Petitioner committed five disqualifying offenses between July 1, 2004, and August 4, 2005, which were described as follows: Count I: Aggravated Child Abuse with a Deadly Weapon (first degree felony); Count II: Aggravated Child Abuse by Great Bodily Harm (first degree felony); Count III: Child Neglect (third degree felony); Count IV: Child Neglect (third degree felony); and Count V: Child Neglect (third degree felony). Disqualifying Offenses The events leading to the disqualifying offenses occurred 11 years ago, when Petitioner was 24 years old. She had two biological children, a son (age 6) and a daughter (age 3), at the time of the events. Each of the disqualifying events involved Petitioner’s children. On August 4, 2005, the paternal aunt of Petitioner’s son observed injuries to the son’s foot and contacted the Leon County Sherriff’s Office to report suspected child abuse. The responding officer recorded his observations in a police report.2/ Petitioner’s son indicated that Petitioner struck him with a metal mop handle on his feet, legs, and arms as punishment. The deputy observed a three-quarters inch, circular-shaped laceration, with two smaller lacerations beside it on the inside of the son’s left heel. On August 16, 2005, a detective continued the investigation. During an interview with the detective, Petitioner’s son indicated that Petitioner struck him with a hanger causing “marks” on his back, which the detective photographed. The detective observed the “marks.” Petitioner’s son also complained of a toothache. He indicated Petitioner placed a heated hairpin in his tooth to resolve the tooth decay. The detective noted in his report that the tooth appeared to be decayed to the root. Petitioner also left her son and daughter at home without supervision, while Petitioner was at work. At the conclusion of the investigation, Petitioner was arrested and charged with child abuse and neglect. On October 26, 2005, Petitioner entered a plea of nolo contendere to all five disqualifying offenses described above. The court withheld adjudication of guilt, sentenced Petitioner to imprisonment of 70 days (with 62 days credited for time served), imposed 42 months of probation with special conditions that she: 1) follow orders of the Department of Children and Families; 2) complete parenting and anger management classes within one year; and 3) pay court costs and fees. Petitioner completed all terms and was released from probation on July 30, 2009. On May 10, 2016, Petitioner paid the civil judgment related to costs and fees imposed for her 2005 offenses and the court issued a Satisfaction of Judgment. Non-Disqualifying Offense In addition to disqualifying offenses, agencies may also consider criminal events that occur after the disqualifying offense. The background screening revealed one non- disqualifying offense. On June 13, 2006, Petitioner was charged with Violation of Probation (“VOP”) for driving without a valid driver’s license. As a result of the VOP charge, on November 16, 2006, the court issued an Order modifying the probation. The Order of modification added 30 days in jail with credit for time served and prohibited Petitioner from early termination of probation. Exemption Request/Agency Review By letter, Respondent notified Petitioner that she was disqualified from employment because of her criminal offenses. She requested an exemption from disqualification. Petitioner filed her Request for Exemption with the Department of Children and Families (“DCF”). DCF conducts the background screening and prepares an exemption investigation file on Respondent’s behalf. A DCF background screener compiled the investigation materials and forwarded the exemption review file to Respondent. Petitioner’s file was assigned to Lynne Daw for a recommendation regarding the exemption request. Ms. Daw is the regional operations manager for the Northwest region. She has been employed in that position since April 2012. Her job responsibilities include overseeing operations of the region, background screening, and eligibility for direct service providers. Ms. Daw reviewed Petitioner’s exemption request file, which included the exemption review summary, court documents, police reports and supporting affidavits, Petitioner’s exemption questionnaire, notice of termination of probation supervision, affidavit of good moral character, character reference letters, reference check verification form, high school diploma from Cornerstone Christian Correspondence School, and certificate of completion for a parenting class. Respondent considers the nature of the disqualifying offenses when evaluating a request for exemption. At hearing, Ms. Daw testified that the nature of the disqualifying criminal charges were concerning due to the vulnerability of the clients Respondent serves. In her review, Ms. Daw relied upon statements contained in the police report made by a physician who examined Petitioner’s son. Those statements are hearsay within hearsay. Because the statements do not meet any hearsay exception, they cannot be considered for a finding of fact. Respondent also considers the history of an applicant since the incident and other evidence or circumstances indicating whether the applicant would present a danger to Respondent’s clients if employment is permitted. Respondent considers counseling a factor, when the nature of the offense involves acts of anger. Ms. Daw testified that there was no evidence in the exemption packet to show Petitioner completed an anger management course. During the hearing, however, Petitioner refuted this contention and stated she completed an anger management course. The evidence in the record includes a notice of termination of supervision from Petitioner’s probation officer. Completion of an anger management course was a term of Petitioner’s probation. Therefore, a reasonable inference could be drawn that she completed the anger management course. Ms. Daw also expressed concern for safety of Respondent’s clients who could be transported by Petitioner. Of note, Petitioner’s background screening revealed several traffic violations. However, none of the violations involved injuries to passengers or others. Subsequent to the disqualifying offenses, Petitioner has furthered her education by earning a general education diploma (also known as GED) on December 1, 2011, and a certified nursing assistance (CNA) certification on November 16, 2015. She is not eligible to take the certification exam due to the Level 2 screening results. Petitioner also maintained employment after her convictions until June 4, 2015. From April 3, 2006, to June 4, 2015, Petitioner worked at Big Lots as a recovery associate. From April 8, 2012, to May 6, 2014, Petitioner worked at Vector Connect (Cutco) as a sales representative. She described her duties as selling cutlery. Petitioner provided favorable reference letters in support of her request for exemption. The first letter described Petitioner as patient, dependable, and trustworthy. The author indicated that Petitioner served as the primary caregiver for her physically disabled mother. It is not clear, however, the length of time Petitioner provided the care to the author’s mother or whether Petitioner was paid for her work. The second letter indicated Petitioner is kind and professional. The author of that letter is described as a friend. Overall, the letters indicated Petitioner may be a good employee but were not helpful on the issue of rehabilitation. Ms. Daw concluded that, considering the totality of the circumstances, there was no clear and convincing evidence that Petitioner could work in a position of trust without posing a safety risk to Respondent’s clients. As a result, Ms. Daw recommended the request for exemption be denied and submitted the exemption file to the agency director, Barbara Palmer, for final determination. The agency director issued the notice of denial on May 27, 2016, notifying Petitioner of Respondent’s determination to deny her request for exemption. Given the nature of harm due to physical abuse and the potential of harm due to neglect, Petitioner’s actions raise concern about her ability to work with vulnerable persons. Absent compelling evidence that such serious behavior will not be repeated, Petitioner has not met her burden. Ultimate Findings of Fact The evidence in this case did not clearly and convincingly establish that Petitioner has been rehabilitated from her disqualifying offenses. Despite Petitioner’s statements that she accepts full responsibility for her actions, she continues to shift blame to her son’s aunt for her arrest and continues to deny that she left her young children at home alone. To her credit, Petitioner has taken steps to improve her life by earning a GED and CNA certificate and by volunteering with the elderly in the community. However, such evidence is not sufficient clear and convincing evidence of rehabilitation. Respondent did not abuse its discretion in denying Petitioner’s request for exemption from the disqualifying offenses because, on these facts, a reasonable person would reach the same conclusion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner, Shimika King’s, request for an exemption from disqualification. DONE AND ENTERED this 12th day of October, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 12th day of October, 2016.
The Issue Whether J.A. knowingly and willfully made a false report of abuse on November 29, 2003 (Abuse Report No. 2003-380412), contrary to Section 39.206, Florida Statutes.
Findings Of Fact The Department is charged by statute to maintain the state's abuse hot line and investigate reports of abuse. It is also charged with investigating false reports of abuse, and is authorized to levy civil fines against those who willfully and knowingly make false reports of abuse. It does this sparingly because it has a chilling effect upon the reporting of abuse. The Department investigated three reports of abuse initiated by J.A. Each of the reports was thoroughly investigated, and each of the reports was determined to be unfounded. J.A. had at one time been the babysitter for G.V., the child about whom the reports were made. J.A. and her husband were also friends with the parents of G.V., for whom J.A.'s husband, Thomas, acted as a translator. When G.V.'s grandmother joined the family, J.A.'s services as a babysitter were no longer needed, and she no longer saw the child frequently. It was apparent from J.A.'s testimony and her actions that she had an emotional attachment to G.V. On March 10, 2003, J.A. made the first abuse report, No. 2003-034565, which alleged that there had been five to eight months of domestic violence between G.V.'s mother and father. It was alleged that this domestic violence occurred several times a week, and that the most recent incident had occurred within the past several days. The mother was alleged to have chased the father with a machete in one hand and G.V. in the other arm. It was alleged that the mother beat G.V. It was alleged that the mother had attempted to jump, while holding G.V., out of the car being driven by the father. The mother was described as being an unsafe and inappropriate caregiver. The child was described as having rotting and broken teeth, which the mother failed to do anything about. This report was investigated by Charles Castell, assisted by Ms. Ehlers. Ms. Ehlers examined the child on March 10, 2003 and found nothing to support the allegations made by J.A. Collateral witnesses, such as neighbors who would have been in a position to corroborate the allegations, were interviewed. Fernando Ramirez, an alleged witness, was interviewed. No witness identified by J.A. or through the investigators' efforts provided any support for the allegations made by J.A. The report was closed with no positive findings on any of the allegations, together with a statement that it appeared to be a false report. The second report of abuse of G.V. made by J.A. was on May 6, 2003. J.A. alleged that the parents of G.V. were engaged in domestic violence, and that G.V.'s mother had chased her father around the yard with a machete while he was drunk. The mother was alleged to be mentally unstable, having a short, bad temper, and beating G.V. J.A. alleged that G.V. father was a drunk who gave G.V. alcoholic drinks and who smoked marijuana and blew the smoke in G.V.'s face. J.A. also alleged that G.V.'s teeth were rotting and one was broken off, and G.V. was poorly nourished and had a flat affect. Gina Ehlers investigated this complaint. She found no indication that G.V. was malnourished or had a flat affect. Ehlers again spoke with neighbors and other witnesses and found no evidence of domestic violence or inappropriate behavior by the mother. Ehlers visited the family on several occasions, including a Friday night at 10:30 or 11:00 p.m., when one might expect to find the father drunk and a cause for domestic violence. Ehlers never found anyone impaired or any evidence of domestic violence or abuse of G.V. Ehlers interviewed J.A., who indicated that she wanted custody of the child and was going to purse whatever avenues were necessary to take the child away from the parents. On November 17, 2003, J.A. made an abuse report to the Department's hotline regarding G.V. J.A. alleged that G.V. was living with her mother and father at the father's mother's home. alleged that everyone but G.V.'s mother abused her physically. J.A. alleged that the father got drunk and hit the child in the mouth, and the child was injured and bruised from this. J.A. alleged that the father gave the child alcoholic beverages to drink. J.A. alleged that the father battered the mother in front of the child. J.A. alleged that the child was at risk with everyone except her mother, Gloria. Steven Shaver investigated this report. Shaver, who examined the child within three hours of the report, found no evidence to support the allegations. He examined G.V. on three separate occasions and looked for bruises or other evidence of physical injury or abuse. He found none. He also observed the child with the parents and did not find that the child was restrained or fearful of the father or his mother. Upon completing his investigation, Shaver reported that J.A. had reported this same information previously and that it was obvious that J. A. was harassing the family of G.V. Kasey Hart testified at hearing. She is now and was a neighbor of the family when the last report of abuse was made in November 2003. She never saw any activity of the type alleged in the abuse report made by J.A. She observed the family interact from time to time, and never saw any abusive conduct. She opined that the child seemed under-disciplined and spoiled as opposed to abused. Steve Lampros, the Child Protective Investigations Supervisor who supervised the investigators who investigated these abuse reports testified. All the investigations conducted were thorough and complete, and included interviews with family and neighbors and physical examination of the child. This included medical examination of the child for injury. All three investigations revealed no evidence that would support a finding that any abuse had occurred. Had there been any indications of abuse, the report would have been labeled "some indicators." J.A. told Lampros that she wanted custody of the child, and would file reports until the Department did something. Lampros warned J.A. that filing false reports was a felony, and that the three reports she had filed had been determined to be without indicators of abuse, that is, unfounded. J.A. stated that her reports were not false and that she would continue to make them. Lampros referred the Abuse Report No. 2003-380412 for false reporting because seven of his investigators had investigated five reports, three within the same year, without discovering any evidence of indicators of abuse. The reports were similar; the investigations were thorough; the reporter appeared to be motivated by a desire to remove the child from the home in the hopes of obtaining custody; and there had been no evidence of abuse. J.A. testified at hearing that she did not see the child from June or July 2003 until a few days prior to the time she made the November abuse report, when she saw the family at Wal-Mart. At that time, they did not see her, and she was not close enough to them to speak. The granddaughter of J.A. testified. She had not seen the child, G.V., since Easter 2004. Her testimony dealt with the period after the time frame involved in the allegations of false reporting. J.A.'s husband testified about his assisting the police with reports of domestic violence between G.V.'s parents in 2001 and 2002, before the time frame of the allegations of false reporting. Susan Mulvey, a neighbor of J.A., testified. Mulvey was at J.A.'s house at times when G.V.'s family came to pick her up when J.A. babysat for G.V. Mulvey observed that G.V. did not want to leave J.A. when her parents came for her. She also observed that the child's teeth had severe cavities.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order levying a civil fine of $5,000 against the Respondent. DONE AND ENTERED this 16th day of February, 2005, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 February, 2005. COPIES FURNISHED: Lucy Goddard-Teel, Esquire Department of Children and Family Services Post Office Box 3, Box 3 Gainesville, Florida 32602 J. A. (Address of record) Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0800 Joe Garwood, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0800
The Issue Does Petitioner, Manatee County School Board (Board), have just cause to terminate the employment of Respondent, Gregg Faller, based upon the conduct involving Mr. Faller's alleged failure to respond appropriately to information he had about the conduct of his subordinate, Rod Frazier, toward females, including students, as alleged in the Administrative Complaint dated October 14, 2013?
Findings Of Fact Stipulated Facts The Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Manatee County (District). § 1001.32, Fla. Stat (2013). The District has employed Mr. Faller since December 8, 2009. Mr. Faller was an administrative parent liaison at Lakewood Ranch High School from December 2009 to May 2009.2/ He served as assistant principal at Manatee High School from July 2010 through July 2013. Mr. Faller served temporarily as an assistant principal at Palmetto High School from July 2013 until he was placed on paid administrative leave on August 1, 2013. At all times, Mr. Faller was required to abide by all Florida Statutes that pertain to teachers and educators, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida (Code of Ethics), and the Policies and Procedures Manual of the Manatee County School District. On August 15, 2013, Respondent was charged with: (1) Failure to Report Child Abuse (sections 39.201(1) and 39.205(1), Florida Statutes (2011)(misdemeanor)); (2) Felony Failure to Report Child Abuse (section 39.201(1) and (2) and 39.205(1), Florida Statutes (2011)(third degree felony)); and (3) False Reports to Law Enforcement Authorities (section 837.05(1), Florida Statutes (2011)(misdemeanor)). The prosecutor dismissed the charge of providing false information to a law enforcement officer. On September 25, 2013, the superintendent notified Mr. Faller in writing of the District's intent to recommend his termination from employment. The superintendent issued an Administrative Complaint against Mr. Faller that same day. On October 14, 2013, during a Board meeting, Mr. Faller was suspended, without pay, pending the outcome of an administrative hearing that he requested. On October 24, 2013, Respondent served a Request for Administrative Hearing and Respondent/Employee's Answer to Administrative Complaint. Additional Facts Florida law imposes a duty to report upon any person who has reasonable cause to suspect child abuse by a person responsible for a child's welfare.3/ The Board emphasized the importance of this obligation in Board Policy 5.2 of the Policies and Procedures Manual of the School District of Manatee County. That policy provides in part: All school employees have a serious affirmative duty to report suspected child abuse and neglect and shall do so pursuant to the guidelines developed. * * * Mandatory Duty to Report Suspected Child Abuse All employees or agents of the district school board who have reasonable cause to suspect abuse have an affirmative duty to report it . . . . * * * Complaints of Child Abuse Reported to an Employee An employee receiving a complaint or report of child abuse shall inquire of the reporting party as to the details of his/her concern but shall not investigate further. If the employee has reasonable cause to suspect that child abuse has occurred based upon the description by the reporting party, the employee must report . . . [to the Florida Child Abuse Registry]. * * * Employee Responsible for Reporting It is the responsibility of the first employee who has "reasonable cause" to suspect abuse to report it to the hotline and to do so immediately. It is unacceptable and violation of the law to simply report suspicions to any other individual (including law enforcement or your supervisor) and ask or expect them to make the report to the hotline. After making a report, the school board employee must inform the principal, supervisor, or other building administrator. If the suspected abuser is a district employee, the supervisor of the reporter will notify his/her director who will notify the Office of Professional Standards. * * * (6) Penalties for Failure to Report Any employee who is required to report and fails to do so may be found guilty of a misdemeanor . . . . Failure to report child abuse as required will also subject the employee to disciplinary action. Mr. Rod Frazier, a subordinate of Mr. Faller, was a person responsible for the welfare of female student, D.K. Mr. Faller was trained in the duty to report child abuse. He has been present with people who have called to report child abuse. He understood that if he learned of something that causes concern from another employee, he may be responsible for reporting the concern to his principal. At Manatee High School, Mr. Faller served as assistant principal. His duties included supervising four parent liaisons: Mr. Gulash, Ms. Torres, Rod Frazier, and Randy Smith. Parent liaisons handle everyday suspensions and the discipline of students. They also handle communication between parents, staff, and students and assist in the classroom. Parent liaisons also mentor some students. Mr. Faller summarized the parent liaison duties as: Their main job is to deal with referrals written by staff members that had issues with student behavior, deal with parents, phone call parents and let them know what their child was doing, basically be a mentor to some of the students if they saw students were struggling and had a relationship with them and could make an impact and try and make them get back on the right track. (Tr., pp. 319-320). The parent liaison job description identifies responsibilities that include: handling routine discipline referrals; referring serious offenses to the assistant principal; supervising students, including bus duty, parking lot, and school events; meeting and dealing effectively with staff members, students, and parents; and modeling and maintaining high ethical standards. During the 2011-2012 school year, Mr. Faller received several reports describing inappropriate conduct and improper relations with female students by Mr. Frazier. He also received a report of sexual harassment of a female parent liaison. Harassment of Adinah Torres Adinah Torres worked at Manatee High School as a parent liaison from November 2010 to July 2012. Mr. Faller was Ms. Torres' sole supervisor during that period of time. During that period, Mr. Frazier trained Ms. Torres on how to enter referrals into the District's data system. During one training session, she sat at his desk using his computer. Mr. Frazier sat on the desk with his feet and crotch toward Ms. Torres. Mr. Frazier rubbed his foot up the side of Ms. Torres' leg during the training session. She pulled away and looked at him. Mr. Frazier smirked at Ms. Torres. She left the room. Mr. Frazier's acts were inappropriate, unwelcome, and unwarranted. They made Ms. Torres uncomfortable. The acts were harassment of Ms. Torres. The following day, Ms. Torres told Mr. Faller about the incident. Mr. Faller agreed that the described conduct was inappropriate. He told Ms. Torres that he could not have these sorts of problems in the office because she might one day need someone to help her with a student disciplinary issue. "You got this?" he asked. Ms. Torres interpreted Mr. Faller's statements to mean that she should deal with the problem.4/ Mr. Faller's version of their conversation is that he told Ms. Torres he would take action if she wished to file a written complaint. Nothing in the policies and procedures of the Board requires an employee to make a written complaint of harassment. In fact, Board Policy 2.19, which establishes procedures for complaints about discrimination and harassment, requires a diametrically opposite approach. Board Policy 2.19(4) sets out an investigation, review, reporting, and appeal process that begins with a written complaint. However, the policy begins with a clear statement that imposes a specific duty upon an administrator, such as Mr. Faller, who learns of an alleged incident of discrimination or harassment. The policy states: The following complaint/grievance procedures are established to receive complaints. However, when any administrator learns of an alleged incident of discrimination/harassment, they are required to report complaints immediately to the Equity Coordinator and will not conduct an investigation. Nothing required a written complaint like Mr. Faller required of Ms. Torres. An immediate report by him is what was required. Ms. Torres spoke to Mr. Frazier and told him the behavior was unacceptable. He denied that it occurred and stormed away from her. Mr. Faller did not note the complaint in Mr. Frazier's file. He did not speak to Mr. Frazier about it or take any disciplinary action. Mr. Faller also did not report the incident that Ms. Torres alleged to anyone, including the school's equity coordinator. Ms. Peebles' Reports of Conduct of Mr. Frazier With Female Students, A.P. and D.K. In the 2011-2012 school year, Manatee High School teacher, Jacqueline Peebles, developed concerns about Mr. Frazier's conduct with two female students. One was A.P., who told Ms. Peebles about Mr. Frazier approaching her at a tiki bar one night and later texting her about the encounter. Another was D.K. and Mr. Frazier's frequent calls to the classroom asking Ms. Peebles to have D.K. report to his office. Ms. Peebles was also concerned about a text message to D.K. that appeared to be from Mr. Frazier telling D.K. to come to his office, that he had heard she was wearing short-shorts. Ms. Peebles told Mr. Faller about all these incidents in one conversation after A.P. told her about the tiki bar encounter. Ms. Peebles told Mr. Faller that she knew A.P. was a troubled student with some discipline issues, but she felt A.P. was being truthful. Ms. Peebles provided the following information to Mr. Faller. She told him that A.P. had reported that Mr. Frazier approached her at night at a tiki bar, where she was drinking illegally. Ms. Peebles told Mr. Faller that A.P. told her that a man approached her from behind and rubbed his erection against her buttocks. A.P. said she turned and saw that it was Mr. Frazier. A.P. questioned him and told him he knew she was a student. Mr. Frazier replied, according to A.P., that she had a "nice ass" and was fair game because she was in the bar and must, therefore, be legal. The record establishes that A.P. was a student. It does not, however, establish her age. No party has asserted she was 18 or older. It is reasonable to infer from A.P.'s student status, the fact that she returned to school the following year, and the absence of dispute that she was under 18. Ms. Peebles said that she told A.P. "that sounds odd." A.P. insisted it was true. Ms. Peebles also told Mr. Faller that A.P. said that she was leaving regular school for an alternative program because Mr. Frazier would not leave her alone. A.P.'s comments and her change of schools indicate that Mr. Frazier's conduct was harmful to A.P.'s mental and emotional health. Ms. Peebles went on to tell Mr. Faller that A.P. then showed Ms. Peebles text messages on her telephone that were marked as coming from Mr. Frazier. The messages referred to the bar encounter saying, "'Oh, you have a hot ass, I really wanted you.'" After reporting the above information to Mr. Faller, Ms. Peebles told him that she believed A.P. In order to help Mr. Faller understand why she thought A.P.'s reports were credible and significant, Ms. Peebles then told Mr. Faller about an incident with Mr. Frazier that occurred before Mr. Faller assumed the position supervising Mr. Frazier. Ms. Peebles had walked into Mr. Frazier's office looking for him. She found Mr. Frazier sitting at his desk with a female student, D.K., sitting in his lap feeding him cake. She told Mr. Faller that she had reported the incident to the acting principal, Mr. Kane, and thought it had been dealt with. Finally, Ms. Peebles told Mr. Faller about her experiences with Mr. Frazier frequently calling the same female student, D.K., from class. The frequency became so great that it was disruptive to D.K.'s education. Ms. Peebles began not answering the telephone or refusing to send D.K. to Mr. Frazier's office. Later, Ms. Peebles saw D.K. texting and took D.K.'s telephone from her and placed it on her desk. D.K.'s phone buzzed with an incoming text message. Ms. Peebles told Mr. Faller that the message said something "along the lines of 'come up to my office. I hear you're wearing short-shorts again.'" D.K. was wearing short-shorts. Ms. Peebles told Mr. Faller that the telephone indicated that the message was from Rod Frazier. This event preceded the conversation with A.P. that Ms. Peebles reported to Mr. Faller. Ms. Peebles told Mr. Faller that Mr. Frazier's texting students frequently was a problem. With D.K., it was especially troublesome because she was missing so much class time. Mr. Faller acknowledges texting is not the proper way for the parent liaisons to contact students during school hours. Mr. Faller said he would talk to Mr. Frazier about the texting. Mr. Faller denies that Ms. Peebles told him about the tiki bar incident. The undersigned finds the testimony of Ms. Peebles credible and persuasive on this issue. A day, or a day and a half, later, Mr. Faller passed Ms. Peebles in the hall. He said, "Hey, I took care of that." After that, Mr. Frazier was unfriendly to Ms. Peebles and rarely spoke to her or handled her referrals. But Mr. Frazier's personnel records contain no indications that Mr. Faller spoke to Mr. Frazier about these incidents or took any action. The credible persuasive evidence proves that Mr. Faller did not report these assertions to the child abuse registry to the administrators or law enforcement, investigate them, or act upon them. Ms. O'Dell's Reports of Mr. Frazier's Conduct With Female Students, D.K. and D.W. Another teacher, Keltie O'Dell, told Mr. Faller of similar problems with Mr. Frazier texting two female students, D.K. and D.W., asking them to leave her classroom. When she would not release them, he called to have the students sent to his office. Ms. O'Dell told Mr. Faller that D.K. and D.W. confirmed to her that they had texted Mr. Frazier asking him to get them out of class. Ms. O'Dell told Mr. Faller of a time when Mr. Frazier brought lunch to D.K. in her classroom so that Mr. Faller would not see her out of compliance with the dress code in the cafeteria. The conduct of Mr. Frazier that Ms. O'Dell reported to Mr. Faller was unprofessional, inappropriate, and improper. Mr. Faller did not report these concerns to any other administrators or to law enforcement authorities. He also did not speak directly to Mr. Frazier about the issues. Mr. Faller only spoke to all of the parent liaisons as a group, generally, about the inappropriateness of texting students to come from class. The file contains no information or notes indicating that Mr. Faller spoke to Mr. Frazier about the incidents, disciplined, or counseled Mr. Frazier. Concerns Reported by Steve Gulash Steve Gulash, an administrative parent liaison in Manatee High School's discipline office, brought similar, but much more general concerns about Mr. Frazier to Mr. Faller. He once told Mr. Faller that he should take note of the fact that Mr. Frazier only signed up as an administrator on duty for female games. He also told Mr. Faller that "this damn guy's probably done some stuff that could put him in jail." Mr. Gulash did not identify specific incidents. Mr. Faller did nothing to inquire into Mr. Gulash's concerns. Mr. Faller's Approach to the Multiple Reports of Mr. Frazier's Improper Behavior The following excerpt, with emphasis added, from the transcript of Detective Marines' interview of Mr. Faller, articulates Mr. Faller's view of responsibility and his method for avoiding responsibility for the supervision of Mr. Frazier and caring for the female students of Manatee High School. Q: Okay. Now is it, is it, uh, you said you were over discipline. A: Uh hum. Q: Is it common for the parent liaison's to text students to get them out of class when they have an issue, they, they A: Is it common? Q: Yeah. A: No. Q: No? A: No. Q: Okay. So what, what is the common uh, like if, if Mr. Frazier wants to see you soon, and talk to him about a referral, I'm assuming that's what you guys do, right? A: We call the classroom. Q: Call the classroom? A: Yeah. Q: Talk to the teacher? A: That would be the norm. Um, Q: How long would he have been? A: You know? Q: How long had he been doing that for? Like texting students out of class? A: I don't know. Q: You don't know? Okay. Uh, did you ever talk to him about it? A: Didn't know about it, except for through a teacher. Q: Through Ms. O'Dell? A: Never witnessed it myself, never had a kid come to me. Yeah, other than that one incident, um, that supposedly took place in her class, you know, she saw the kid using the phone, and then all of the sudden, you get up and say I have to go to Frazier. So she's putting two and two together, so I can't, I mean I can't say, you know, that it definitely happened. Q: Uh hum. A: Um, that's a, that's a teacher, um, believing that it may have occurred. Um, and I'm not in the business of, of, figuring those things out. You know? Q: No, I A: I mean the bottom line is Q: know. I completely. [sic] A: Um, Q: Did you ever talk to him about it or no? He just didn't bother. A: There's nothing to address. If I don't know for sure that he's doing it, then I'm not gonna address it. I mean, uh, Q: Okay. A: You know? But, I mean if it was happening, um, I had no direct knowledge. Nobody's ever told me directly that they know for a fact that this is going on. (emphasis added). (P. Ex. 18, 2/11/13, pp. 7 & 8). Mr. Faller chose to ignore the information. Eventually, through the efforts of people other than Mr. Faller, the reports of Mr. Frazier's activities with female students reached responsible authorities triggering an administrative and criminal investigation of Mr. Frazier. Those investigations subsequently expanded to examine the actions and inactions of Mr. Faller, Principal Gagnon, former Assistant Principal Matt Kane, and assistant superintendent for District Support, Scott Martin, when they received complaints about Mr. Frazier. Ultimately, Mr. Frazier resigned from Manatee High School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Gregg Faller. DONE AND ENTERED this 29th day of August, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of August, 2014.
The Issue Whether the decision of the Department of Children and Family Services (Respondent) to revoke the license of Martha Taylor (Petitioner) to operate a large family child care home is appropriate.
Findings Of Fact Petitioner is licensed to operate a large family day care home, located at 14019 219th Lane, Live Oak, Florida. Her license to provide child care dates from 1998. Jimmie P. Taylor is Petitioner's husband. He lives in the home where Petitioner operates the large family day care facility. Taylor is disabled and does not work outside the home. He is home during the day and has unsupervised access to the children in the large family child care home. On June 3, 2002, Respondent's protective services investigator contacted Deputy Sheriff Wayne Musgrove of the Suwannee County Sheriff's Department. The investigator had received an anonymous report that Petitioner's husband was the perpetrator of a verified report of child abuse. On June 4, 2002, Musgrove interviewed Taylor. Petitioner's husband admitted that in 1987, while Petitioner and her daughter were living in his house in Pinellas County, Florida, he had fondled Petitioner's then 16-year-old daughter in her genital area and that the daughter had fondled his genital area and "masturbated him." He and Petitioner were not married at the time. While the investigation in 1987 resulted in a confirmed report of child abuse, naming Taylor as perpetrator, no other legal consequences befell Taylor because Petitioner's daughter recanted her previous admissions in a circuit court proceeding regarding the matter. Later Taylor and Petitioner's daughter received counseling and today, according to Petitioner and Taylor, enjoy a normal relationship. Respondent's policy is never to license an individual to conduct a family day care business where an abuse perpetrator resides in the same home. Other than denying licensure, Respondent has no means to lessen or remove a threat to children in such a situation since unsupervised contact by such a person with children in the home is possible. In fact, Petitioner would not have received a license in 1998 had Respondent's representatives known about the 1987 confirmed report.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered confirming the revocation of Petitioner's license to operate a large family child care home. DONE AND ENTERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2002. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Martha R. Taylor Country Air Childcare Home 14019 219th Lane Live Oak, Florida 32060-5336 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner, Agency for Health Care Administration, properly found that Respondent, Commons at Orlando Lutheran Towers, violated the requirements for operating a nursing home contained in 42 C.F.R. Section 483.13(c) and, if such a violation did occur, did Petitioner properly classify it as a Class II deficiency.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the state agency charged with the licensing of nursing homes and the assignment of licensure status pursuant to Chapter 400, Florida Statutes. Petitioner evaluates nursing home facilities to determine their degree of compliance with established state rules as a basis for making the required licensure assignment. In addition, Petitioner is responsible for conducting Federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with Federally mandated statutory requirements. These Federally established requirements are applicable to Florida nursing homes pursuant to Rule 59A-4.1288, Florida Administrative Code. Respondent is a licensed nursing home located at 210 Lake Avenue, Orlando, Orange County, Florida. As authorized by Chapter 400, Florida Statutes, Petitioner surveyed Respondent to determine whether Respondent was in compliance with applicable state and federal laws and regulations. When Petitioner conducts a survey of a nursing home, it issues a survey report, commonly referred to by its form number, a "2567." If deficiencies are noted in the "2567," they are identified by a "Tag" number which identifies the particular section of 42 C.F.R. 483 which addresses the deficiency. In addition, the survey determines the level of deficiency. As a result, the alleged deficient practice, the particular regulation violated, and the class of the deficiency, are cited in the 2567 survey report. Petitioner conducted its annual survey of Respondent from October 22 through 25, 2001, and issued a 2567 survey report noting certain deficiencies. Based on an examination of Respondent's records and interviews with Respondent's staff, Petitioner determined that two adverse incidents took place which were abusive and required reporting to the appropriate State authorities pursuant to the Federal regulation contemplated by 42 C.F.R. Subsection 483.13(c)(1); in particular, Respondent had failed to report the abusive incidents to appropriate officials within five working days. The survey report noted a Tag F225, which incorporates 42 C.F.R. Subsection 483.13(c)(1). Petitioner determined this to be a Class II deficiency. As a result of this deficiency, Petitioner changed Respondent's licensure status from Standard to Conditional effective October 25, 2001. Petitioner conducted a "follow-up" survey on December 13, 2001, which determined that the deficiency under Tag F225 had been corrected, and reinstated the Standard licensure status effective that date. Respondent has a policy statement entitled Resident Abuse/Neglect/Misappropriation of Resident's Property. Number 6 of the policy statement states: "[R]eports of abuse, neglect, or misappropriation of resident property will be reported to the proper State authorities within five (5) days of the incident." Both incidents took place in Respondent's Alzheimer's unit; this is a 42-bed, dedicated unit that is locked to prevent residents from leaving the unit. The residents of this unit all suffer cognitive loss to the point that they are no longer able to care for themselves. Typically, they are severely cognitively impaired and are unable to understand what they are doing. Residents are placed in the Alzheimer's unit because their disease has progressed beyond that level seen in residents in other areas of Respondent's facilities. At approximately 3:30 p.m., on October 10, 2001, Resident 26, a female, was discovered in the room of Resident 25, a male. Resident 26 had her pants down to her knees and one side of her incontinence brief was un-taped. Resident 25 had his hand on Resident 26's abdomen. At the time of the incident, Resident 25 was in his own room and was in a Broda chair with a pelvic restraint. He was fully dressed. Resident 26 was returned to her room where it was discovered that she had a soiled incontinence brief. The incident was immediately reported by the nurse who discovered it to his supervisors. Contemporaneous notes were entered into Resident 25's records. A late note was entered into Resident 26's medical files on October 15, 2001. An investigation was initiated that included taking written statements from staff personnel involved; informing the Interdisciplinary Team of the incident; preparation of an incident/accident report; and preparation of reports concerning the incident to the facilities' risk manager. Responsible parties for both residents were notified of this incident on October 11, 2001. Resident 26's physician and the facilities' medical director were informed of this incident. The Incident Report was circulated among appropriate staff, and a contemporaneous entry was entered in the Monthly Resident Incident Worksheet. The incident was not timely reported to Adult Protective Services or Petitioner as required by Federal regulations. After its investigation of the incident between Resident 25 and Resident 26, Respondent determined that no sexual abuse took place, and, therefore, a report to appropriate State authorities within five days of the incident was not warranted. A second incident took place on September 13, 2001. This incident involved Resident 9 who was hit by another resident. The "aggressor" resident was seen standing over Resident 9, who was seated in a Broda chair, striking Resident 9 on the arms, upper body, and back with her fists and yelling at Resident 9 to stay out of her room. The "aggressor" resident was returned to her room. Resident 9 was taken to the nurse's station where she was examined and comforted. She remained at the nurse's station for the next two hours where she was monitored. Physical examination noted no red marks, bruises, or apparent injuries. Range of motion examinations revealed no limitations. The unit manager was informed of the incident, as was the risk manager. A contemporaneous incident/accident report was made. Resident 9's daughter was notified the following day. The incident/accident report was reviewed by the Director of Nursing, the Medical Director, and Respondent's Administrator. The incident was contemporaneously reported in the Monthly Resident Incident Worksheet. The incident was not timely reported to Adult Protective Services or Petitioner as required by Federal regulations. After its investigation of the incident between Resident 9 and the "aggressor" resident, Respondent determined that no actual harm occurred, and, therefore, a report to appropriate State authorities within five days of the incident was not warranted. No evidence was presented indicating that the conduct of Resident 25, Resident 26, or the "aggressor" resident could have been anticipated or reasonably prevented. Similarly, no evidence was presented indicating that Resident 26 or Resident 9 actually suffered any "physical, mental or psychosocial" harm. However, each incident involved activities which had the potential to cause significant physical, mental or emotional impairment. Respondent was in substantial compliance with 42 C.F.R. Section 483.13(c) in its response to the two incidents reported. The two incidents were immediately internally reported, thoroughly investigated, relatives were notified, appropriate notation was made in patient and institutional records, and appropriate preventative and ameliorative action was taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered changing the classification of the deficiency to Class III and eliminating the imposition of the Conditional licensure status effective October 25, 2001. DONE AND ENTERED this 10th day of January, 2003, 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 10th day of January, 2003. COPIES FURNISHED: Jay Adams, Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether the Respondent committed an act of violence or used force on any person except in the lawful protection of one's self or another from physical harm and, therefore, should have his license renewal as a Class "D" Security Officer denied pursuant to Section 493.6118(1)(j) and (2), Florida Statutes.
Findings Of Fact The Petitioner, Michael S. Snow, was at all times relevant to these proceedings a licensed Class "D" Security Officer. The Respondent is the agency that licenses and regulates security officers pursuant to Chapter 493, Florida Statutes. On or about April 12, 2003, the Petitioner filed an application to renew his license as a Class "D" Security Officer. The Respondent advised the Petitioner by letter of its intent to deny his application; the Petitioner requested a hearing; and these proceedings ensued. Subsequently, the Respondent amended its letter of denial, and the letter of August 14, 2003, (Second Amended Administrative Denial of License), constitutes the charging document. That letter states that the application is denied because of the applicant's failure to qualify under Section 493.6118(1)(j), Florida Statutes, because the applicant committed an act of violence or used force on another person that was not for the lawful protection of himself or another. At the hearing, Union County Deputy Sheriff Terry Cranford was called to testify. Deputy Cranford identified an affidavit that he had prepared on November 24, 2002, in relation to an investigation in which the Petitioner was the alleged perpetrator of abuse of an 18-month old child. The affidavit, Respondent's Exhibit numbered 1, was prepared by the deputy after he had interviewed various witnesses in the case; however, the deputy did not observe any of the alleged conduct. The deputy did observe the child on November 22, 2002, during the course of his investigation. The alleged incident, which involved the Petitioner striking the child in the face, took place on November 21, 2002, some 24 hours earlier. The deputy did not mention in his affidavit any injuries he observed. The deputy did not testify at hearing to any injuries to the child. The deputy stated that the child was too young to provide any information on the incident. The deputy's investigative focus at the time he prepared the affidavit was on the mother of the child and another relative. He did not interview the Petitioner. All the information that he obtained about the Petitioner's involvement was through the Child Protective Investigator, Ms. Joiner. The Respondent called Janice Joiner, an investigator with the Department of Children and Family Services (DCFS), who testified regarding her investigation of the incident. Like the deputy, above, Ms Joiner did not observe the incident. It is clear from her testimony and that of the child's mother, that the child's natural father reported the incident. He picked up the child from the daycare on the afternoon of November 21, 2002, and raised questions about the red handprint on the child's face. As a result of the investigation, DCFS initiated a dependency action, which precluded with the right of the child's mother to have custody of the child during the investigation, legal proceedings, and subsequent mediation between attorneys representing the child's mother and father. As a result of the investigation initiated by the child's father, his ex-wife, the child's mother, had to agree to end her relationship with the Petitioner. Ms. Joiner testified regarding what the Petitioner told her. He admitted he struck the child while putting the child in his car seat, when the child grabbed his uniform epaulet and would not let go. Ms. Joiner opined that this was abusive, and stated that the doctor who examined the child said it was abusive. Ms. Joiner did not state upon what information she based this opinion. She mentioned the handprint she saw on the day following the incident, which she described as faint. The Petitioner entered pretrial intervention on the charges brought against him, and successfully completed the program which called for him, to among other things, attend parenting and anger management classes. He was never tried; has never plead or been found guilt of any offense related to this incident; and his civil rights were never affected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue the Petitioner a Class D Security Officer's license. DONE AND ENTERED this 20th day of May, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 May, 2004. COPIES FURNISHED: Michael S. Snow Post Office Box 1131 MacClenny, Florida 32063 Michael T. McGuckin, Esquire Assistant General Counsel Department of Agriculture and Consumer Services Division of Licensing Post Office Box 6687 Tallahassee, Florida 32314-6687 Brenda D. Hyatt, Bureau Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32314-6687 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32314-6687
The Issue The issues in this case are whether Respondent violated the provisions of Florida Administrative Code Rule 65C-22.001(11) (2013),2/ as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by Respondent. It is the Department’s responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department inspects each licensed day care center several times a year. In the event of a complaint, additional inspections and/or investigations are conducted. Respondent is a licensed child care facility located in Manatee County, Florida. On October 12, 2017, Ms. Linzmayer received a complaint from an anonymous source who said she worked at the Academy. As a result of that complaint, Ms. Linzmayer was prompted to call the Department’s abuse hotline. Ms. Clark was working as an investigator for the Manatee County Sheriff’s Office, Child Protective Investigation Unit in October 2017. When notified of the potential abuse allegation, Ms. Clark conducted an investigation on October 12, 2017. The scope of Ms. Clark’s investigation centered on the allegations that a teacher had hit a child in the mouth. Ms. Clark spoke with employees at the Academy and then met with the alleged victim (A.O.) and the child’s family at a local law enforcement office. Ms. Clark’s investigation did not substantiate the case (of actual abuse) because she did not have proof that something did or did not happen. Ms. Clark notated that the Academy had not contacted the abuse hotline regarding the suspected child abuse and there was no incident report.4/ Ms. Barna-Roche conducts health, safety, routine and renewal inspections, as well as complaint inspections of child care facilities. After receiving the hotline abuse allegation, Ms. Barna-Roche inspected the Academy and spoke with several of its employees. As a result of her inspection, Ms. Barna-Roche found that the Academy failed to report the alleged child abuse. The only first-person account of the alleged classroom events of October 6, 2017, was provided by Ms. Gonzalez, a former teacher at the Academy. Ms. Gonzalez was in the two-year-old classroom, with another teacher, Ms. Tover. Ms. Gonzalez credibly testified that she did not “pop” a child in the mouth, and that she had never told Ms. Tover she had “popped” or used physical or inappropriate force relative to A.O. Ms. Gonzalez provided a brief history of her association with Ms. Tover, which was unflattering to both. For a time Ms. Gonzalez lived in the same house with Ms. Tover and members of Ms. Tover’s family. A disagreement arose regarding Ms. Gonzalez’s dog, and Ms. Gonzalez was asked to leave the house. In order to gather her belongings from the house, Ms. Gonzalez was forced to call law enforcement for assistance. This disagreement appears to have spilled over to the Academy, where both women worked. As part of her supervisory duties, Ms. Johnson (also known as Ms. Charlotte or Charlotte Hill) makes it a point to observe the children as they enter and leave the Academy. She conducts these observations in order to address any potential issues regarding a child’s well-being and to provide excellent service to the children and their parents in the care provided. Ms. Johnson was not in the two-year-old classroom on October 6, 2017, but observed the children entering and leaving the Academy that day. Ms. Johnson did not see the alleged abuse victim, A.O., with a fat or bloody lip as he left Respondent’s facility on October 6, 2017. Ms. Johnson was aware that Ms. Gonzalez had lived in the same house as Ms. Tover and her sister, and Ms. Johnson knew that Ms. Gonzalez moved out of the house prior to October 2017. Ms. Johnson was aware of some interpersonal issues between Ms. Tover and Ms. Gonzalez that were not associated with the Academy. Both Ms. Gonzalez and Ms. Johnson acknowledged being mandatory reporters, and clearly testified that had either seen or thought there was abuse, they would have reported it. As alleged in paragraph 4 of the AC above, in one instance Ms. Tover is alleged to have “witnessed another teacher ‘popping a child on the mouth’ and informed the child’s grandmother, who also works at the facility.” Yet, in paragraph 5 of the AC, Ms. Tover “confirmed her account of the alleged abuse. At the time of the incident, she turned around when she heard a child crying.” (emphasis added). Ms. Tover did not testify at hearing. There is no evidence that any abuse occurred. The testimony provided by Ms. Linzmayer, Ms. Clark, and Ms. Barna-Roche relies upon hearsay, and in some cases hearsay upon hearsay. Their testimony is found to be insufficient to meet the burden in this proceeding. The lack of direct evidence of the alleged abuse is troublesome. The indication that Ms. Tover “witnessed” the abuse or turned around after she heard a two-year-old child cry and was told something occurred is insufficient to overcome the direct testimony of the alleged perpetrator, who denied the accusation. It is true that additional training in spotting child abuse or suspected child abuse, and reporting such abuse or suspected child abuse is warranted at the Academy; however, the evidence is not clear and convincing that any abuse, real or suspect, occurred on October 6, 2017.
Recommendation Upon consideration of the evidence and testimony presented at the final hearing, and 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. DONE AND ENTERED this 25th day of April, 2018, 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 25th day of April, 2018.
