The Issue Whether Respondent, in November 2006, violated child care facility licensing standards relating to supervision set forth in Florida Administrative Code Rule 65C-22.001(5), as alleged by the Department of Children and Family Services (Department) in its December 15, 2006, letter to Respondent. If so, whether Respondent should be fined $1,000.00 for this violation, as proposed by the Department in the aforesaid December 15, 2006, letter.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, including Thursday, November 16, 2006, Respondent operated a child care facility located at 780 Fisherman Street in Opa Locka, Florida (Facility) pursuant to a license issued by the Department, which was effective June 10, 2006, through June 9, 2007. On November 16, 2006, J. D. was one of nine children between the ages of 12 and 23 months in the Facility's Wobbler/Toddler class. Two properly credentialed Facility staff members, Charnette Muldrow and Barry Thompson, were assigned to oversee the children in the class that day. Cheryl Smith is now, and was at all times material to the instant case, including November 16, 2006, the Facility's office manager. Among her various responsibilities is to make sure that state-mandated staff-to-child ratios are maintained in each of the Facility's classrooms. To this end, she has placed posters in the classrooms indicating what these "appropriate ratios" are and that they "must be maintained at all times." In addition, she "do[es] counts [of staff and children in each classroom] every hour on the hour." She did these "counts" in J. D.'s Wobbler/Toddler classroom on November 16, 2006, and each time found the staff-to-child ratio to be "correct" (one staff member for every six children). Sometime around noon on November 16, 2006, a Facility staff member brought J. D. to Ms. Smith's office. J. D. was not crying, although she had a roundish red mark on her right cheek that she had not had when her mother had dropped her off at the Facility earlier that day. "It looked like ringworm to [Ms. Smith] at first." There were no discernible "puncture wounds," nor was there any blood. The staff member who had brought J. D. to the office explained to Ms Smith that J. D. had "bumped her face" on the "corner cabinet in the classroom." After administering first-aid to J. D., Ms. Smith attempted to contact J. D.'s mother, J. F., by telephone. She was unable to reach J. F., but left a message at J. F.'s workplace. J. F. returned Ms. Smith's call at 12:54 p.m. and was told by Ms. Smith that J. D. had "bumped her head on a cabinet while playing, and she ha[d] a little bruise," but was "doing fine." J. F. left work at 4:30 p.m. and went directly to the Facility to pick up J. D. Upon arriving at the Facility, J. F. first went "upstairs" to see Ms. Smith, who told her "about the incident and what [had] happened." J. F. then went to retrieve J. D. (who was "downstairs"). It did not appear to J. F., when she examined the mark on J. D.'s cheek, that the mark was "from the cabinet." In her opinion, it looked like J. D. had been bitten by "somebody,"4 a view that she expressed upon returning to Ms. Smith's office. Ms. Smith replied, "There's no biters in here.5 Nobody bit J." Before leaving the Facility with J. D., J. F. signed an Accident/Incident Report that Ms. Smith had filled out. According to the completed report, on "11/16/06 at 12:00 noon," J. D. "was playing with . . . toys and bumped her face on the corner cabinet," leaving a "red mark on the right side of her face"; Mr. Thompson was a "[w]itness[] to [the] [a]ccident/[i]ncident"; the injured area was treated with "antiseptic spray[,] triple antibiotic ointment and a cold compress"; and a message was left with J. F. "to call school." J. F. took J. D. directly from the Facility to the Skylake office of Pediatric Associates, a pediatric group practice to which J. D.'s regular pediatrician belonged. J. D.'s regular pediatrician was unavailable that evening, so J. D. saw someone else,6 who gave her a signed and dated handwritten note, which read as follows: To whom it may concern The injuries on [J. D.'s] cheek and back are consistent with a human bite. Please investigate.[7] Thank you. J. F. reported to the local police department, as well as to the Department, that J. D. had been injured at the Facility. J. F. provided this information to Ian Fleary, the Department's childcare licensing supervisor for the north area of the southeast zone, during a visit that she made to Mr. Fleary's office late in the afternoon on Friday, November 17, 2006. J. F. brought J. D. with her to Mr. Fleary's office and showed Mr. Fleary the red mark on J. F.'s cheek, as well as three other, less visible marks on J. F. (one on her cheek, beneath the red mark; one on her lower back; and one on her right forearm).8 Mr. Fleary took photographs of all four marks.9 Mr. Fleary asked one of his subordinates, Linda Reiling, to "address [J. F.'s] complaint as soon as possible." Ms. Reiling, accompanied by Mr. Fleary, went to the Facility on Monday, November 20, 2006, to investigate J. F.'s complaint. Ms. Reiling and Mr. Fleary interviewed Facility staff members, including Ms. Muldrow and Mr. Thompson.10 Ms. Muldrow stated that she had gone to the restroom, having asked another staff member "to watch the children" in her absence, and first "saw the mark on [J. D.'s] cheek" upon her return to the classroom. Mr. Thompson advised that he was "on lunch break at the time the incident occurred."11 No one to whom Ms. Reiling and Mr. Fleary spoke at the Facility "admitted seeing [J. D.] being bitten." Based on her investigation, Ms. Reiling was unable to determine, one way or another, whether the staff-to-child ratio in J. D.'s classroom was "correct" on "[t]he day of the incident," but she did find that there was a "lack of supervision." Ms. Reiling prepared a written complaint documenting this finding and provided it to Ms. Smith. Meloni Fincher, a child protective investigator with the Department, also investigated the matter. She was assigned the case on November 17, 2006, after the incident had been reported to the Florida Abuse Hotline. Ms. Fincher began her investigation by visiting J. F. and J. D. at their home that same day (November 17, 2006), some time after 4:00 p.m. During her visit, Ms. Fincher observed that J. D. had "bruises to her cheek, her back, and [also] her arm." Ms. Fincher was unable to determine the nature or cause of these injuries, so she made arrangements for J. D. to be seen on November 21, 2006, by a University of Miami Child Protection Team physician. Ms. Fincher went to the Facility on November 21, 2006, but was unable to speak to any staff members about the incident at that time. She returned to the Facility on December 7, 2006. This time, she interviewed Ms. Muldrow, Mr. Thompson, Ms. Smith, and Dawnise Mobley.12 None of the interviewees claimed to be an eyewitness to the incident, having personal knowledge of what happened to J. D. After receiving a copy of the Child Protection Team's "medical report," which contained the team's determination that J. D. had "bite marks at different stages [of] healing [which were] consistent with another child [having] bit[ten] [her]," Ms. Fincher, on December 12, 2006, "closed the case" finding "[v]erified indicators of inadequate supervision."13 The evidence received at the final hearing does not allow the undersigned, applying a clear and convincing competent evidence standard, to reach the same conclusion that Ms. Fincher and Ms. Reiling did regarding the adequacy of the supervision J. D. received at the Facility on November 16, 2006. While the evidence is sufficient to support a finding that J. D. suffered a single (red) mark on her right cheek while at the Facility that day, it does not clearly and convincingly establish that she was being inadequately supervised at the time. Inferring that Respondent failed to provide J. D. with adequate supervision based on the mere fact that she received this mark while in Respondent's care is unwarranted, absent a clear and convincing showing (enabling the undersigned to conclude, with a firm belief and conviction and without hesitancy) that a toddler would not receive such a mark while at a child care facility in a classroom setting like J. D. was in unless there was a lack of adequate supervision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order dismissing the "inadequate supervision" charge made in its December 15, 2006, letter to Respondent. DONE AND ENTERED this 11th day of October, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2007.
