The Issue The issue in this matter is whether the Department of Children and Families should deny Respondent’s application for registration as a family day care home.
Findings Of Fact The Department is the state agency charged with regulating providers that are licensed or registered as family day care homes. Family day care homes must register annually with the Department. See § 402.313(1)(a), Fla. Stat. Respondent is owned and operated by Cherrie Scally. Ms. Scally has registered Respondent as a family day care home since 1997. In or about August 2015, Ms. Scally filed an application with the Department to renew Respondent’s registration as a family day care home for 2016. Respondent's registration for 2015 expired on October 30, 2015. Upon receiving Ms. Scally’s application, the Department reviewed whether to renew Respondent’s registration as a family day care home. As part of its determination, the Department examined the Florida Central Abuse Hotline Records Search (“CAHRS”). In CAHRS, the Department identified an Investigative Summary involving Respondent that verified a finding of “inadequate supervision” in March 2015. Based on the CAHRS Investigative Summary, the Department issued an Administrative Complaint in November 2015, revoking Respondent’s registration as a family day care home.2/ The Department determined that it could no longer approve Respondent’s registration “based on the verified finding of inadequate supervision.” The CAHRS resulted from an incident that allegedly occurred on March 5, 2015. On March 6, 2015, the Central Abuse Hotline received an anonymous phone call reporting an injury to a child at Respondent’s family day care home. A four-year-old girl who attended Respondent’s family day care home reported to her mother that another child had hurt her.3/ Jessica Baloy, a child protective investigator with the Department, was assigned to investigate the incident. Her duties include investigating facilities regarding complaints of child abuse and neglect. Ms. Baloy prepared the CAHRS Investigative Summary. Ms. Baloy visited Respondent's family day care home on March 9, 2015, to investigate the allegation. Ms. Scally informed Ms. Baloy that she had no knowledge of how or when the child was injured. Ms. Scally did not learn of the incident until the child’s mother called her the evening after the child was picked up. Ms. Scally thought that the incident may have occurred in her “playroom” while she was in her kitchen either cleaning up another child or preparing snacks.4/ During her visit, Ms. Baloy found that the part of Ms. Scally’s home used for childcare consists of two rooms, a “playroom” and a kitchen. The rooms are located next to each other, but a wall separates them. Ms. Baloy observed that the wall obstructs the view between the playroom (where the injury allegedly occurred) and the kitchen where Ms. Scally believes she was located at the time of the incident. Ms. Scally admitted to Ms. Baloy that, while she is able to hear the children in the playroom from the kitchen, she is unable to see directly from the kitchen into the playroom. In her investigation, Ms. Baloy reported that the child had “no indicator” of physical injury. In other words, Ms. Baloy did not find evidence to suggest the child had sustained an injury. Ms. Baloy personally interviewed the child and did not observe any discomfort or physical injuries. Ms. Baloy also received information from the child’s mother that a doctor had examined the child and determined that she had not suffered any trauma, just “some irritation.” The child’s mother decided that no further medical treatment or examination was needed. In her Investigative Summary, Ms. Baloy reported that “[o]bservations of the home daycare were positive that it was not hazardous for the children.” Ms. Baloy also declared that Ms. Scally “once notified by a parent completed the proper notifications needed in regards to this incident.” However, Ms. Baloy did have “some concerns in regards to supervision.” She found that when Ms. Scally was working/standing in her kitchen, she could not view the children in the playroom. Consequently, if something bad happened, she would not be able to see it. Also during her visit to Respondent, Ms. Baloy observed 11 children in Respondent’s facility. Consequently, Respondent was over capacity by one child. (As discussed below, family day care homes are restricted to a maximum of ten children at one time.) After her visit, Ms. Baloy closed her investigation with “verified findings for inadequate supervision.” Ms. Baloy was not aware of any prior investigations involving Respondent. Dinah Davis is the policy supervisor for the Department’s Office of Childcare Regulation. Her responsibilities include approving applications for family day care home registrations with Samantha Wass de Czege, the Department’s Director for the Office of Childcare Regulation. Ms. Davis expressed that the Department was concerned with Ms. Baloy’s Investigative Summary because the finding of “inadequate supervision” indicated that Ms. Scally left the children unattended outside of her direct supervision. The Department’s “rule of thumb” regarding supervision is that a caregiver must be within “sight and sound of the children and [be] able to respond to emergency situations.” Ms. Davis expressed that a constant sightline is crucial to allow the caregiver to respond to and prevent an emergency or potentially harmful situation. Adequate “sight” supervision means that children should be at least within the caregiver’s peripheral vision. In addition, Ms. Davis explained that, by statute, no family day care home is allowed to care for more than ten children at one given time. Ms. Davis referred to section 402.310 as the Department’s authority to deny Ms. Scally’s application. Although section 402.310 allows the Department to place a family day care home registration on probation status, Ms. Davis stated that the Department did not consider the option to place Respondent on probation. Ms. Wass de Czege also testified regarding the Department’s decision to revoke (deny) Respondent’s application for registration. Ms. Wass de Czege stated that the Department’s action was based on the child protective investigator’s findings of “inadequate supervision” and overcapacity. Ms. Wass de Czege agreed with Ms. Davis that supervision in a family day care home requires “direct sight and hearing of the children at all times” so that the caregiver is “able to respond to meet the needs of the children.” Ms. Wass de Czege explained that based on the floor design of Ms. Scally’s home, “she could not have the children in her sight. So, she was not meeting that parameter of the definition of supervision.” Ms. Wass de Czege explained that the Department’s definition of “inadequate supervision” for family day care homes is found in Florida Administrative Code Chapters 65C-22 and 65C-20.5/ Ms. Wass de Czege also remarked that having more than ten children in care at a family day care home is considered overcapacity. Therefore, having 11 children present in the home at the time of Ms. Baloy’s visit caused Respondent to be out of compliance with the governing regulation. Ms. Wass de Czege also conveyed that registration of a family day care home is basically a paper process. The applicant submits the paperwork. The Department checks off the information listed in section 402.313(1)(a). If approved, the applicant can care for children. Ms. Wass de Czege commented that, because of a lack of manpower and resources, a registered family day care home is not subject to routine inspections by the Department. Consequently, the Department has little regulatory oversight of Ms. Scally’s home. Based on its review of the CAHRS, the Department determined that Respondent failed the background check necessary to register as a family day care home for 2016. Ms. Scally testified on behalf of Respondent at the final hearing. Ms. Scally has operated her family day care home since 1997. She has successfully registered with the state every year since then. She cares greatly for the children entrusted to her. This current matter is the first issue she has encountered regarding her registration. Regarding the incident on March 5, 2015, Ms. Scally did not learn that a child may have been harmed at her home until the child’s parent called her that evening to report an injury. The parent relayed that her daughter told her that another child had poked her in a sensitive area, drawing blood. Upon learning of the injury, Ms. Scally immediately took action. That evening, she spoke with the parents of both children involved to make sure all parties were aware of the situation. The next morning, Ms. Scally called the injured child’s parent back to inquire of her well-being. Ms. Scally also contacted her own pediatrician seeking advice on the situation. Ms. Scally offered to arrange for her pediatrician to examine the child. Ms. Scally herself was the anonymous caller reporting the incident to the Central Abuse Hotline.6/ She called the abuse hotline on the next morning. (The CAHRS Investigative Summary notes that the call was received on March 6, 2015, at 10:38 a.m.) Ms. Scally called the abuse hotline because she knew reporting the injury was the proper and legally required step to take. Ms. Scally commented that the Department would not have learned of the incident but for her phone call. Ms. Scally conceded that, when she is standing in her kitchen, she does not have a direct line of sight with the children in her playroom. Consequently, Ms. Scally admitted that if the child was injured in the playroom while she was in the kitchen, the child was out of her sight for a short period of time. On the other hand, Ms. Scally asserts that she can always hear her children from the kitchen. Furthermore, no child is ever out of her eyesight for more than a couple of moments. Ms. Scally also represented that she has taken steps to ensure that she can maintain “sight and sound” supervision over her children in the future. She has purchased a mirror to place in the hallway between the playroom and the kitchen. This mirror allows her to see into either room from the other. Ms. Scally stated that in her 19 years of childcare, she has never had any incidents in her family day care home. Ms. Scally acknowledged that she might have had 11 children in her care on the occasion of Ms. Baloy’s visit to her home on March 9, 2015. Ms. Scally explained that it was likely during a “transition” period as her children were being picked up and dropped off and was not a regular occurrence or for an extended period of time. Based on this incident, Ms. Scally asserts that she will be extra cautious about the interactions between the children in her care. Ms. Scally presented testimony from several parents whom she serves. They each asserted that Respondent provides a valuable service, and they trust her with their children in her home. Mia Carla Hagins placed her daughter with Respondent from 2009 through 2014. Ms. Hagins testified that Ms. Scally ensures safety, nurturing, and care for the children she supervises. Thomas Breck placed two children with Ms. Scally from 1996 through 2000. Mr. Breck testified that Ms. Scally provided excellent care and demonstrated complete professionalism. Mizanne Brown placed her child with Ms. Scally for ten years. Ms. Brown testified that Ms. Scally was fabulous, nice, and wonderful. Ms. Scally also produced 26 letters of recommendation from parents and teachers of children for whom she has cared. Ms. Scally asserted that these letters show how positively her community views her, her home, and her childcare services. Based on the competent substantial evidence presented at the final hearing, the Department failed to establish, by a preponderance of the evidence, sufficient grounds to deny Respondent’s application for registration as a family day care home under the provisions of section 402.310. Accordingly, the Department should approve Respondent’s application to register as a family day care home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order approving Respondent’s application for registration as a family day care home. DONE AND ENTERED this 2nd day of August, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2016.
The Issue The issue is whether Petitioner's application for licensure to operate a family day care home should be denied.
Findings Of Fact On June 6, 2008, Petitioner applied for a license to operate a family day care home in Bartow, Florida. As part of the licensure process, the Department is required to conduct an inspection of the home where Petitioner's proposed family day care would be operated. The inspections are conducted by the Department's family safety counselors. Patricia Step was the family safety counselor initially responsible for conducting the licensure inspection of Petitioner's home. On February 20, 2009, prior to conducting the actual inspection, Ms. Step completed a preliminary walk-through of Petitioner's home. The purpose of the walk-through was to advise Petitioner of areas of her home and property that were not in compliance with required standards and needed to be corrected or addressed prior to the licensure inspection. After completing the initial walk-through, Ms. Step listed the areas that needed to be corrected or addressed prior to the licensure inspection in preliminary review notes, which she gave to Petitioner. Those areas were as follows: (1) a fence at least four feet high was needed around the playground area in the backyard; (2) the alarm on one of the two doors in the master bedroom, specifically, the master bathroom door leading to the pool, needed to be repaired; (3) the screen door needed to be locked from the inside so that a child playing outside could not access the swimming pool5; and (4) locks needed to be placed on kitchen cabinets containing cleaning supplies and other harmful items, and knives needed to be placed in upper cabinets. On February 27, 2009, a week after the initial walk-through, Ms. Step conducted a licensure inspection of Petitioner's home. This date was mutually agreed upon by Petitioner and Ms. Step on February 20, 2009, after Petitioner indicated that she could have the four areas of non-compliance corrected or addressed in a week. During the licensure inspection, Ms. Step determined that Petitioner had addressed and/or corrected three of the four items listed in the preliminary review. The one item that had not been addressed was the "pool alarm on the [master bathroom] door" leading to the swimming pool. The alarm on the master bathroom door was part of Brinks' alarm system that included all the other doors in the house which led outside or to the pool area. Petitioner and her husband had this "high tech" alarm system installed after the April 23, 2006, incident discussed below. The alarm system could be programmed to allow each interior door to cause either the alarm to sound or a "chiming sound" when anyone opened the interior door to exit the house. At the time of the inspection, all the interior doors leading to the pool were programmed so that when the alarm system was turned on, the alarm would sound if anyone opened those doors.6 Except for the master bathroom door, the alarm on all the other doors leading to the pool were working properly. Ms. Step recorded the results of the February 27, 2009, inspection on the Department's Inspection Checklist form ("Inspection Checklist"). Of the 38 areas listed on the Inspection Checklist, Ms. Step indicated that Petitioner's application and/or home were non-compliant in two areas-- background screening and swimming pools. In the area of background screening, Ms. Step noted that there was no local criminal background check on file for Carlos Granados, Petitioner's cousin who was temporarily living in Petitioner's household. In the area of swimming pools, Ms. Step noted two areas of non-compliance: (1) the swimming pool at Petitioner's home was not properly maintained; and (2) the "pool alarm" was inoperable. Although the Inspection Checklist noted that the "pool alarm" was inoperable, Ms. Step never told Petitioner that a "pool alarm" needed to be in the swimming pool. Rather, Ms. Step spoke to Petitioner only about the need to repair the alarm on the master bathroom door that led to the pool.7 Based on Ms. Step's statements to Petitioner about the "alarm" and her preliminary review notes, both Ms. Step and Petitioner understood the reference to "pool alarm" on the Inspection Checklist to mean the alarm on the master bathroom door. The Inspection Checklist completed on February 27, 2009, specified that the "due date" to correct the non-compliant areas was April 3, 2009. After completing the licensure inspection on February 27, 2009, Ms. Step intended to return to Petitioner's home to determine if the non-compliant areas had been brought into compliance. However, Ms. Step never returned to Petitioner's home. Instead, Vicki Richmond, a family safety counselor, followed up on Petitioner's progress in addressing the non-compliant areas8 while she was at Petitioner's home conducting a complaint investigation.9 On March 13, 2009, nine months after Petitioner submitted her licensure application, Ms. Richmond conducted a Central Abuse Hotline search on Petitioner and her husband as part of the application review process. The Department is required to search the records of the Central Abuse Hotline for reports of abuse, neglect, or abandonment. This search provides information as to whether Petitioner's name appears in those records, and, if so, whether there were "verified" indicators of maltreatment of children. Both Petitioner and her husband consented to this search. The Central Abuse Hotline search revealed a verified report for inadequate supervision by Petitioner and her husband and some indicators of maltreatment, asphyxiation. The report involved an incident that occurred on April 23, 2006, in which Petitioner and her husband's then three-year-old daughter almost drowned. On or about March 13, 2009, Ms. Richmond notified Ms. Step of the report and advised her that the verified findings needed to be addressed prior to proceeding with the license. On March 20, 2009, while driving across Highway 60 in the Bartow area, Ms. Richmond saw a sign with the name of Petitioner's prospective family day care home and her address and telephone number. Concerned that the sign did not include a license number, Ms. Richmond contacted the licensing office to verify whether Petitioner's home was a licensed family day care home. She was advised that Petitioner's licensure application was "pending" and had not been approved. Ms. Richmond then called Ms. Step to check the status of Petitioner's licensure application. During that conversation, Ms. Step reminded Ms. Richmond that this was the applicant for whom she (Richmond) had recently done the Central Abuse Hotline search. On March 23, 2009, as part of the complaint investigation about Petitioner's sign, Ms. Richmond made an unannounced visit to Petitioner's home. Ms. Richmond advised Petitioner that it was illegal for her to post a sign advertising her home as a family day care home before it was licensed. In response, Petitioner informed Ms. Richmond that after the February 27, 2009, licensure inspection, she (Petitioner) had been told that she could put a sign up and start a waiting list of people interested in day care services. After hearing Petitioner's explanation, Ms. Richmond then told Petitioner that "if" she put up a sign prior to licensure, the sign had to "at least" include in bold letters, "License Pending." On March 23, 2009, immediately after addressing the "sign" issue, Ms. Richmond conducted an unannounced or inspection walk-through of Petitioner's home and discussed issues with Petitioner that Ms. Richmond believed were of concern to the Department. During the walk-through, Petitioner advised Ms. Richmond that the "door alarm" had not yet been repaired. Among the issues Ms. Richmond raised and discussed with Petitioner were: (1) the need to install either a pool alarm or portable pool barriers; (2) the pool was not clean and was only partially filled with water; (3) the spa in the backyard needed a cover; (4) the local criminal background check for Petitioner's cousin had not been received. Ms. Richmond described to Petitioner and her husband two options related to the swimming pool--the "portable pool barriers" and a "pool alarm." In describing the "pool alarm," Ms. Richmond indicated that it was a device that was placed in the pool. She further explained that with this type of "pool alarm," if a child fell in the swimming pool, the alarm would sound. Although the alarm on the master bathroom door was not working on March 23, 2009, Petitioner's husband was making efforts to get the door alarm repaired. However, that day, Ms. Richmond told Petitioner and her husband that even if the alarm on the master bathroom door was repaired, they still needed to have an alarm in the pool. In response to this directive, Petitioner agreed that they would install a "pool alarm" in the swimming pool. After completing the March 23, 2009, walk-through, Ms. Richmond informed Petitioner that the items she had discussed needed to be corrected prior to a license being granted. However, no written documentation was provided to Petitioner regarding the areas of non-compliance discussed during the walk-through or inspection. Ms. Richmond returned to Petitioner's home on March 27, 2009, for her second unannounced visit, which was described as a follow-up to her "complaint investigation." Once there, Ms. Richmond observed that the sign advertising the family day care home was still displayed. However, Petitioner's husband came home while Ms. Richmond was there and immediately took down the sign. During the March 27, 2009, unannounced complaint investigation visit, Petitioner told Ms. Richmond that the alarm on the master bathroom door was not working. About that time, Petitioner's husband arrived and told Ms. Richmond that he had purchased a pool alarm and even showed her the alarm. The "pool alarm" was purchased in response to Ms. Richmond's directive during the March 23, 2009, walk-through but had not been put in the pool, because the pool had not yet been cleaned.10 At the end of the March 27, 2009, unannounced visit, Ms. Richmond talked to Petitioner and her husband about the verified abuse/neglect report regarding the April 23, 2006, incident in which their daughter almost drowned. The findings in the report were "verified" for inadequate supervision by Petitioner and her husband. Given the implications of the abuse/neglect report, Ms. Richmond explained that although Petitioner needed to address the areas of non-compliance, the most pressing and immediate concern was the abuse/neglect report. Petitioner's husband testified credibly that during the conversation described in paragraph 23, Ms. Richmond told him and Petitioner that because of the abuse/neglect report, there was "no way" Petitioner would get a family day care home license. Based on that comment, Petitioner and her husband reasonably believed that Petitioner's application would be denied because of the abuse/neglect report. On March 27, 2009, after being told about the abuse/neglect report and the ramifications of that report, Petitioner and her husband "stopped moving forward" on the areas of non-compliance related to the swimming pool (i.e., cleaning the pool and installing the pool alarm).11 Believing the abuse/neglect report would result in denial of her licensure application, Petitioner and her husband began to focus on issues related to the report. They were also concerned and had questions about the Department's licensing process as it related to the abuse/neglect report. Ms. Richmond's third visit to Petitioner's home was on April 7, 2009. The sole purpose of that visit was to answer the "real" questions that Petitioner and her husband had about the abuse/neglect report and the licensing process. Ms. Richmond answered their questions as best she could, but recommended that they schedule an appointment with the licensing supervisor at the licensing office.12 That same day, Petitioner and her husband scheduled a meeting and met with Sheila Nobles, administrator and supervisor for child care licensing, to discuss, ask questions about, and review the abuse/neglect report. On April 8, 2009, Ms. Richmond finalized her "report" on the complaint investigation regarding the sign. Ms. Richmond's notes in the "comment" section of the pre-printed "Notice to Cease and Desist" form described the events of March 20, 23 and 27, 2009, as they related to the sign issue.13 Decision to Deny Application As the family safety counselor responsible for reviewing Petitioner's application and conducting the licensure inspections, Ms. Step recommended to Ms. Nobles that Petitioner's license be denied. Ms. Step's recommendation was based on the verbal reports provided to her by Ms. Richmond, which indicated that the areas of non-compliance on the Inspection Checklist had not been corrected. Prior to making a decision about Petitioner's application, Ms. Nobles reviewed the application file, the abuse/neglect report, the Inspection Checklist and the preliminary review notes. Ms. Nobles testified that she considered the "five different inspections"14 of Petitioner's home and property by the two licensing counselors, the areas of non-compliance that had not been corrected, and the abuse/neglect report with a "verified" finding of inadequate supervision. The Central Abuse Hotline Report Applicants seeking licensure to operate a family day care home are required to undergo a Level II screening. That screening included a check to determine if the applicant had a report in the Central Abuse Hotline. Due to concern for the safety of children, the Department is authorized to deny a family day care home license if the applicant has a verified abuse/neglect report. Because of its concern about the safety of children in Petitioner's care, the Department alleges that the abuse/neglect report revealed during a Central Abuse Hotline search is ground for denying Petitioner's license. As it relates to the abuse/neglect report, the denial letter states in relevant part: The Department has documented a verified abuse neglect report whereby your then 3-year-old daughter was not supervised correctly on June 21, 2006.[sic][15] These actions allowed your child to wonder [sic] outside the family swimming pool were [sic] she was found after an undetermined time under water and not breathing. During the investigation it was determined that the lock to get access [presumably to the pool] had been broken for a few days. The abuse/neglect report was initiated when a call was received by the Central Abuse Hotline on April 23, 2006. According to the intake-report, an incident occurred at Petitioner's and her husband's home in which their then three- year-old daughter ("child") almost drowned. Jermaine Turner, a child protective investigator ("CPI"), was assigned to investigate the incident. As the investigator, CPI Turner was responsible for making contact with the family of the child and other appropriate individuals. During the investigation, CPI Turner worked under the supervision and direction of Terry Lynn Reinhardt, a child protective supervisor. As CPI Turner's supervisor, Ms. Reinhardt had contact with CPI Turner and gave him directives related to follow-up activities on case-related matters. The abuse/neglect report includes a summary of notes which purport to summarize interviews CPI Turner conducted with Petitioner and her husband on May 18, 2006, about a month after the subject incident. Petitioner's husband recalled that this interview was conducted by telephone. Ms. Reinhardt testified that CPI Turner interviewed the child's parents and also made telephone contact with them to follow-up on an issue involving a "broken door." Ms. Reinhardt was not present at the interviews that CPI Turner conducted with Petitioner and her husband. Thus, she had no first-hand knowledge of what, if anything, they said to CPI Turner. Rather, Ms. Reinhardt relied on CPI Turner's verbal reports to her and the notes and summaries in the abuse/neglect report attributed to him. CPI Turner did not testify at this proceeding. Moreover, no competent evidence was presented regarding any entries (i.e., notes, comments, and/or interview summaries) in the abuse/neglect report attributed to CPI Turner. The case was closed on June 21, 2006, and the findings and conclusions in the matter were summarized in a two-page document titled, Investigative Summary. The Investigative Summary includes an "updated" note dated June 6, 2006, that provided: "The child . . . was left to watch cartoons; however, she was found face down in a swimming pool. The lock to get access from the pool to the house had been broke [sic] for approximately two day [sic]. They stated they planned to fix the lock but never got around to it." No evidence was presented as to who made the "updated" note or the source of the information in that note. After the investigation was complete, Ms. Reinhardt concluded that there were "some indicators" of maltreatment, asphyxiation, and verified findings of inadequate supervision as to both parents. In reaching that conclusion, Ms. Reinhardt relied on information provided by Mr. Turner and then applied the Department's CFOP 175-28 in reaching those conclusions. Florida Administrative Code Rule 65C-30.001(6) incorporates by reference the "Allegation Matrix" set forth in the Department's CFOP 175-28. Pursuant to that rule, the "Allegation Matrix" is a document that defines specific types of abuse, neglect or abandonment; guides staff in determining whether abuse, neglect or abandonment has occurred; and assists in ensuring that all factors are considered when assessing each type of maltreatment. The Department's CFOP 175-28 was not offered into evidence during this proceeding. Based on the conclusion reached by Ms. Reinhardt, the abuse/neglect report was closed on June 21, 2006, with the finding of some indicators of maltreatment, asphyxiation, and verified findings of inadequate supervision. Notwithstanding those findings, the Investigative Summary reflects that there was no prior history of abuse or neglect and no criminal history. Moreover, the Investigative Summary indicated that no intervention services were needed, no placement outside the home was required, and no judicial action was required. Finally, Petitioner and her husband were not given any safety plan to implement. The April 23, 2006, incident was also investigated by the Polk County Sheriff's Office ("Sheriff's Office"). That investigation included at least two or three detectives and/or officers taking and tape recording sworn statements from Petitioner, her husband, and her father-in-law. All of these sworn statements were "in-person" interviews taken within 24 hours of the incident. Petitioner's husband testified credibly that the written summaries of the sworn statements taken by the Sheriff's Office detectives, particularly that of Detective Wharton, accurately reflect not only the substance of the interviews, but also what actually occurred on April 23, 2006. Petitioner's husband testified credibly about the facts related to the April 23, 2006, incident and the accuracy of written summaries of the tape-recorded sworn statements taken by detectives as set forth below in paragraphs 51 through 60. On April 23, 2006, Petitioner was in the family pool with her then three-year-old daughter. While Petitioner and her daughter were in the pool, Petitioner's husband and his father arrived at the house. Petitioner then went into the house to prepare dinner and her husband stayed at the pool with the child. Shortly thereafter, Petitioner's husband removed the child from the pool, took off the floatation device the child was wearing while in the pool, took her into the house, and then closed and locked the bottom lock of the door. Once in the house, Mr. Best put on a movie for his daughter in her bedroom and then told his wife that the child was in the room watching a movie. The child left the bedroom and went to the kitchen where her mother was preparing dinner. For some time, the child went back and forth between the kitchen, playing near her mother and/or "helping" her mother, and the living room where she (the child) was sitting on the floor watching cartoons on television. The kitchen and living room were adjacent rooms with a large opening between them which allowed a person in one room to see into the other room. When Mr. Best and his daughter went into the house, his father (the child's grandfather) was taking a shower. A few minutes later, after taking his shower and getting dressed, the child's paternal grandfather got out his new video camera and went to the kitchen/living room area to videotape his granddaughter while she was playing. He videotaped her playing for several minutes and then went to the bedroom to put away the video camera. It took the child's grandfather about two or three minutes to put away his video camera and return to the kitchen area. When the grandfather returned to the kitchen/living room area, he asked Petitioner where the child was. Believing the child was in the living room, Petitioner told her father-in-law that the child was in the living room looking at television. Petitioner then went into the living room to look for the child and discovered she was not there. Petitioner then immediately went outside to the patio and saw the child laying face down in the pool. Petitioner screamed for help, jumped in the pool and lifted the child from the water. Petitioner's husband was close enough to the kitchen/living room area that he heard the exchange between his father and Petitioner about the child's whereabouts and Petitioner's subsequent scream. Within a few seconds, Petitioner's husband ran from the house, jumped in the pool, removed his daughter from the pool, and placed her on the pool deck. Once the child was on the pool deck, the child's father and her grandfather immediately began administering CPR while Petitioner called 911. They continued performing CPR on the child until the emergency medical services and the fire department arrived on the scene. Both parents reported to detectives investigating the incident that the child knew how to open and unlock doors. Based on the facts established at or near the time of the incident, it was concluded that the child slipped out of the house and went undetected for about two or three minutes. Petitioner and her husband described the child's "slipping out of the house" as unusual and something she had never done prior to April 23, 2006. Until that day, the child had never gone off on her own and had been fearful of and never gotten into the swimming pool at that house. (Petitioner and her family had moved to this house only two or three months before the incident.) Based on its investigation, which included sworn statements by Petitioner, her husband, and her father-in-law, the Sheriff's Office concluded that the April 23, 2006, incident was an accident. The Department does not disagree with the conclusion reached by the Sheriff's Office (i.e., the April 23, 2006, incident was an accident). Nevertheless, according to Ms. Reinhardt, irrespective of whether the incident was an accident or done on purpose, the Department still found "verified" indicators of inadequate supervision, because the child got out of the house and into the pool and almost drowned. The factual allegations in the report upon which the Department relied were not established by competent and substantial evidence. In absence of such evidence, the Department's verified finding of inadequate supervision has not been proven. The record in this case is devoid of any evidence to establish the Department's finding of any indicators of maltreatment. Therefore, the Department's findings that there were "some" indicators of maltreatment has not been proven. Alarm on the Master Bathroom Door The Department alleges that during the applicable time period, the swimming pool at Petitioner's home did not comply with the requirements in Florida Administrative Code Rule 65C-20.010(1)(i). That rule requires that swimming pools at least one-foot-deep have either a barrier at least four-feet- high around the pool, separating the pool from the house, or a pool alarm that is operable at all times when children are in their care. There was conflicting and inconsistent information provided to Petitioner as to whether a "pool alarm" that floats in the swimming pool was required instead of a door alarm, which is also apparently referred to as a pool alarm. Despite any confusion that may have been caused by the different representations made to Petitioner, it is undisputed that the preliminary review notes and the Inspection Checklist clearly indicate that Petitioner was required to repair the alarm on the master bathroom door which led to the pool. It appears that Florida Administrative Code Rule 65C-20.010(1)(i) refers to door alarms as pool alarms. Petitioner's husband testified credibly that he attempted to have the door repaired by service personnel of the alarm company that installed the alarm system, but has been unsuccessful in doing so. In light of these futile attempts, Petitioner's husband purchased a battery-operated door. However, it is unknown when the battery-operated door was purchased, whether it has been installed, and, if so, how it works. The alarm on the door of the master bathroom had not been repaired by the April 3, 2009, "due date" or any time thereafter, nor had any acceptable alternatives been installed. Maintenance of the Swimming Pool The Department alleges that the swimming pool at Petitioner's home was not clean and maintained as required by Florida Administrative Code Rule 65C-20.010(1)(j). That Rule requires that if a family day care home uses a swimming pool, it shall be maintained by using chlorine and other suitable chemicals. Petitioner acknowledges that, at all times relevant hereto, the swimming pool at her home was not clean and properly maintained. Some time after the denial letter was issued, Petitioner's swimming pool was emptied, a full-processed cleaning was completed, and the pool was filled with water. However, a leak in a light in the pool was discovered. In order to repair that leak, the pool had to be emptied. At the time of this proceeding, the leak was being repaired. Once the leak is fixed, the pool can be filled with water and the "pool alarm" that floats in the pool can be installed. Local Law Enforcement Background Check The application process requires that each person living in the home that will serve as the family day care home have a background screening. Such background screening includes a check by the Federal Bureau of Investigation ("FBI"), the Florida Department of Law Enforcement (FDLE"), and a local criminal history check. In February 2009, Petitioner's cousin, Carlos Granados, was living with Petitioner and her husband. Accordingly, Mr. Granados was required to have a local criminal history check, and a copy of that criminal history check was to be provided to the Department. Petitioner testified credibly that she submitted all the documents for completion of Mr. Granados' background checks and could not explain why the Department did not receive the local criminal history check for Mr. Granados.16 The evidence established that Mr. Granados no longer lives in Petitioner's home. Therefore, the Department does not need, and is not required to have, a local criminal history check for him.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Children and Family Services, enter a final order: (1) finding that Petitioner, Best Family Day Care Home, failed to meet the standards in Florida Administrative Code Rule 65C-20.010(1)(i) and (j); and (2) denying Petitioner's application for a family day care home on those grounds. DONE AND ENTERED this 9th day of February, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2010.
The Issue Whether Respondent, Mildred Jones, doing business as Jones Family Day Care (Jones or Respondent), committed the violations alleged in the Administrative Complaint dated May 29, 2012, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent operated a licensed day care facility located in Orange County, Florida. On the date of the attempted inspection in this case, Respondent had six children enrolled in her day care program. Petitioner is the state agency charged with the responsibility of licensing and inspecting day care facilities throughout the State of Florida. As part of that responsibility, Petitioner routinely inspects day care facilities to assure compliance with rules and regulations that govern day care programs. On May 4, 2012, Petitioner’s agent, Luz Torres, inspected Respondent’s home. This was not Ms. Torres’ first visit to the home and, like all other visits, she approached the front door during regular business hours and knocked. Upon knocking, Ms. Torres was greeted by a female voice behind the door who advised that she could not let Ms. Torres into the home. The female, later identified as Christine Randall, refused Ms. Torres admission even after the inspector advised that it was required by law. Despite her efforts to enter the home, Ms. Torres was denied access. Ms. Torres could hear the sounds of children within the home but could not from outside the front door determine the identity or number of the voices. Ms. Randall did not advise Ms. Torres that Ms. Jones was in the rear of the property. Ms. Randall did not direct Ms. Torres to go to the rear of the property. Ms. Torres could not view the rear of the property from the front entrance. Ms. Torres’ efforts to reach Ms. Jones by telephone proved fruitless. Ms. Randall has not been screened or had a background check in years. Ms. Randall was not listed as a substitute caregiver for Respondent’s facility. Ms. Jones’ claim that only Ms. Randall’s two children were present on the date Ms. Torres attempted entrance has not been deemed credible. Ms. Jones also claimed Ms. Randall was present helping her prepare for her inspection. Had only two children been present, Ms. Randall could have easily admitted Ms. Torres, had her observe that the home was being prepared for inspection without other children present, and addressed her role as helper to Ms. Jones with only her own children present in the home. Instead, Ms. Randall denied access to the home and failed to direct Ms. Torres to the rear of the property (presuming Ms. Jones was, in fact, there). Ms. Wright’s suggestion that only Ms. Randall’s children were present on the date in question has not been deemed persuasive as Ms. Wright did not enter the home on that date, did not view the home for the entire time, and does not routinely know who is or is not in the home from her vantage as Respondent’s neighbor and friend.
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 finding Respondent committed a Class I violation and imposing an administrative fine in the amount of $250.00. DONE AND ENTERED this 1st day of October, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 1st day of October, 2012. COPIES FURNISHED: Stefanie C. Beach, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1782 Mildred Jones Jones Family Day Care Home 5027 Caserta Street Orlando, Florida 32819 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the Petitioner's application for renewal of a family day care home license should be granted.
Findings Of Fact At all times relevant to this case, the Petitioner owned and operated a licensed family day care home in Lakeland, Florida. On March 26, 2003, representatives of the Respondent arrived at the Petitioner's facility to assist in distributing materials that had been obtained by the facility. There were six children in the facility on March 26, 2003. The Petitioner was the only adult present and available to supervise the children. Upon arriving at the facility, one of the Respondent's representatives discovered an unsupervised "toddler" playing in the bathroom. The child's hands were in a toilet that was unclean and unflushed. One of the Respondent's representatives removed the child's hands from the toilet intending to wash the child's hands, but there was no soap or toweling available. It is unclear whether the Petitioner was aware that the child was in the bathroom, but in any event the child was unsupervised. Subsequently during the same visit, the Petitioner took the children outside into a play area and then returned inside to talk to the Respondent's representatives, leaving all of the children outside and unsupervised. The Respondent's representatives terminated their visit after advising the Petitioner to return outside and supervise the children. On March 27, 2003, a child protective investigator (CPI) employed by the Respondent arrived at the facility to investigate a report of inadequate supervision received on the previous day. Upon arriving, the CPI asked the Petitioner, who was the only adult present in the facility, as to the census and was advised that there were five children in the facility. The CPI observed the five children in a playroom. A few minutes later, the CPI responded to noise coming from the bathroom and discovered a sixth child, unsupervised and playing in the apparently-clean toilet water. The CPI removed the child's hands from the water. At one point, the Petitioner took another child into the bathroom and left him there. At another point, the Petitioner put infants into a room to nap, leaving the other children unsupervised while she did so, and then leaving the infants unsupervised while they napped. One child ran into an enclosed garage area without the Petitioner's knowledge. The Petitioner was unable to properly identify all of the children by name when requested to do so by the CPI. When asked to retrieve files on the children, the Petitioner left all the children unsupervised while she went to her automobile to get the files. The Petitioner asserted that the CPI had offered to watch the children while she went outside to get the files. The CPI denied having agreed to supervise the children. The greater weight of the evidence fails to support the Petitioner's assertion that the CPI offered to supervise the children during the visit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order denying the Petitioner's application for renewal of licensure as a family day care home. DONE AND ENTERED this 24th day of September, 2003, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 24th day of September, 2003. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Wanda Williams Williams Family Daycare Home 1630 Fruitwood Drive Lakeland, Florida 33805 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concern whether the Petitioner's registration to operate a registered family daycare home should be revoked.
Findings Of Fact The Department is an agency of the State of Florida charged with registering family daycare homes in Florida and regulating their practices and operations. The Petitioner has been registered to operate a family daycare home since 1998. That registration was conditional because of an incident which occurred on January 14, 1999, involving the Petitioner's daughter, Cleta Brantley, in which Ms. Brantley purportedly brandished a knife and threatened a neighbor in the daycare home in the presence of the children being kept there. The investigation of that incident (not directly involved in this proceeding) resulted in the Petitioner's registration being made conditional, based upon her ensuring that in the future Cleta Brantley would never be present in the home. James Farrar is a child protective investigator with the Department. He testified on behalf of the Department in this proceeding. He is personally engaged in three investigations regarding child abuse, abandonment or neglect involving the Petitioner's home, including one investigation which was still in progress as of the date of the hearing. The earliest investigation involved an incident of domestic violence which occurred on January 14, 1999. That incident was a violent altercation between the Petitioner's daughter, Cleta Brantley and the neighbor, during which Ms. Brantley brandished a knife in the daycare home in the presence of the clients' children. The investigation revealed that three of Ms. Parker's relatives, Cleta Brantley, Thomas Brantley, and William Ousley, were residing with Ms. Parker, at least part of the time. Mr. Farrar made findings of maltreatment, verified, for domestic violence and associated with a deadly weapon. The second investigation involving Mr. Farrar related to concerns involving an incident occurring in May 2002. In this incident, Ms. Parker's son William Ousley, was residing at the home when a verbal altercation erupted between Mr. Ousley and other family members and the Petitioner's assistant who worked in the daycare operation at the home. Mr. Ousley was under the influence of alcohol during this altercation and children were present in his immediate vicinity in the home. Mr. Farrar's investigation revealed that Mr. Ousley had a criminal background involving a felony conviction and had not been subjected to "level two screening" before the Petitioner allowed him to occupy the home, at least on a part-time basis. On the day in question Mr. Ousley was in a drunken state and became very angry and argumentative and engaged in a shouting altercation with a person or persons in the home, culminating in his throwing a beer bottle inside the home. The daycare worker or assistant of Petitioner ordered him to leave or she would call the police. Ultimately she summoned the police who arrived, investigated the incident and made a report. One of the officers involved testified at the hearing. Mr. Farrar made verified findings of maltreatment regarding the children in the home on the basis of their being exposed to a person who was abusing alcohol and for possible physical harm to the children. Mr. Farrar also had an active investigation of child abuse at the time of this hearing. This investigation involved an incident occurring less than two weeks before the administrative hearing. In this incident some dogs which the Petitioner was keeping at her home, which belonged to her son Thomas Brantley, attacked a child in the front yard of the home, resulting in injuries to the child requiring some 50 stitches and staples in the child's head and back. Four other children were present in the home at the time of the attack. The dogs had been living in the home for approximately two years at the time of the incident. This incident is not itself a basis for the proposed revocation in this case and was not noticed as a ground for proposed revocation by the Department's charging letter of June 11, 2002. The evidence of this incident is used as corroborative evidence to the testimony and evidence offered concerning the incidents giving rise to the charging letter and proposed agency action. Debra Ann Martin is a family counselor in the licensing department of the Department of Children and Family Services. She testified at the hearing. She is the caseworker who has been assigned to the Petitioner's home since March of 1999. She described the Department's requirements concerning background screening for anyone over the age of 12 who lives in, occupies or resides in a registered daycare home. Ms. Martin established that Ms. Parker has been advised a number of times concerning these rules regarding screening and has knowledge of the screening requirements. The Department's Composite Exhibit One in evidence consists of Ms. Parker's registration applications with the Department, each dated in December 1999, 2000 and 2001, respectively. Other than her granddaughter, listed on the 1999 application, Ms. Parker did not list anyone as a family or household member in any of those applications. Ms. Martin offered a chronology of history of disturbances and incidents involving the Lucille Parker Daycare Home. Ms. Martin established that the Department had denied Ms. Parker's application to re-new her registration in 1999 based upon the concerns of the Department involving Ms. Parker's daughter, Cleta Brantley, referenced above. Ultimately, however, Ms. Parker was allowed to re-register her home on the condition that Cleta Brantley would not live at the home or be allowed any access to the children in the home. During a visit on December 22, 1999, however, Ms. Martin observed Cleta Brantley in the home with her belongings and clothing. The Petitioner testified that Ms. Brantley was merely at the home briefly that day to pick up belongings and clothing which had been left at the home at an earlier date and that she did not actually reside at the home. Further contact by Ms. Martin in the year 2000 and 2001, however, showed that Cleta Brantley and William Ousley both stayed at the home or spent the night on occasions. Ms. Martin described several other incidents when she found evidence that one or more of Ms. Parker's children were sleeping in the daycare home, including an incident in which Thomas Brantley threatened to turn his dogs on her. All of these children or relatives were over the age of 12 at the times in question. They were not and have not been subjected to screening by the Department. Officer Frank Van Schmidt of the Fort Walton Beach Police Department testified on behalf of the Department. Officer Van Schmidt was involving in an incident in May of 2002, in the daycare home of the Petitioner, Lucille Parker. The incident involved Ms. Parker's son, William Ousley. Officer Van Schmidt described observing Mr. Ousley as very intoxicated, angry, yelling and screaming. Officer Van Schmidt testified that Mr. Ousley made it clear to him that he lived at Ms. Parker's home. Officer Van Schmidt established that the Petitioner, Lucille Parker, initially told him that Mr. Ousley did indeed live there but changed her story later on the same day. This was the day when Officer Van Schmidt investigated the incident, described above, involving William Ousley and the angry drunken altercation. Officer Van Schmidt testified that during the investigation of the incident he overheard Lucille Parker telling someone that she had previously advised the Department several times that Mr. Ousley did not live in the residence because if the Department found out that he did live there she could lose her license. This was after Ms. Parker had advised the officer that Mr. Ousley did not reside at the residence. This is also after Ms. Clayborne, who worked for Ms. Parker and Ms. Gibson, who was present at the scene, had earlier advised the officer that Mr. Ousley did live at the residence. Before he left the home on that day Officer Van Schmidt advised Ms. Parker that the case would be forwarded to the Department of Children and Families. She asked him not to contact the Department and he advised her that he had to tell them according to law. She then stated that she would pay him money if he would not say anything to the Department but he advised her that they had already been notified and that a report would be sent to them. The Petitioner, Lucille Parker, testified on her own behalf. She testified generally that various persons often stayed at her home for limited periods of time. She testified that William Ousley would "stay" with her when he was in town and that the Department found out about that when Ms. Martin discovered Mr. Ousley at the home. Ms. Parker acknowledged that Ms. Ousley had never been given or requested a background screening. Ms. Parker stated that she told Debra Martin that Mr. Ousley was not living there. She further acknowledged that she had kept Mr. Thomas Brantley's dogs at her home for several years and that these were the same dogs involved in the October 2002 attack on a child on her premises. The Petitioner called her other witnesses, some of whom have had their children kept by the Petitioner for substantial periods of time in the last two decades. They uniformly described the Petitioner as given good care to their children, maintaining a safe environment for them and being a very loving keeper of their children. These witnesses who have had their children kept by the Petitioner uniformly testified that they would not hesitate to have her keep their children once more or to continue to keep them as the case may be. Additionally, the Petitioner's minister described the Petitioner as good Christian person who has been an active worker in her church for some 40 or more years, of the highest moral character and otherwise quite well suited to continue to keep children in her home.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Petitioner's registration to operate a registered family daycare home should be revoked; however, the revocation should be suspended for a period of one year, during which time the Petitioner, operating under reasonable, but frequent inspection and reporting requirements imposed by the Department, should be given an opportunity to show that the violations of the relevant statutes and rules have been corrected and that she is maintaining the operation of her registered family daycare home in a manner which precisely comports with the rules, policies and statutes that the Department is charged with enforcing. If she demonstrates such compliance to the Department at the end of one year then her registration should be restored in an unimpeded status. If she does not, then revocation should be carried out. DONE AND ENTERED this 9th day of May, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of May, 2003. COPIES FURNISHED: Lucille Parker 2112 Ajax Drive Pensacola, Florida 32548 Rick D. Cserep, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent, Agency for Persons with Disabilities (“APD” or the “Agency”), should have approved the application submitted by Petitioner, Our House Too (“Our House”), seeking licensure as a residential facility (specifically, a group home facility).
Findings Of Fact Our House applied for a license to operate a residential facility/group home with a capacity of five residents in February 2014. A group home is a place where persons with certain medical, psychological, or other limiting conditions, may reside and have companion care and specified personal care assistance services. The facility proposed by Our House would provide respite care, supported living coaching, and transportation services. Milsap signed the application form on behalf of Our House. Contained within the application was the following question: “Have you or anyone identified as a board member or party to ownership ever been identified as responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult?” Our House truthfully and accurately answered “No” to the question and submitted the application. The application was signed by Milsap and notarized on February 9, 2014. Milsap also owns and operates a registered family day care home. By letter dated April 14, 2015, Milsap was notified that an investigation which had been conducted by the Department of Children and Families (“DCF”) on March 5, 2014, at Ms. Milsap’s family day care home was now complete.1/ Milsap had been at her home when the investigation occurred, so she was already aware of the nature of the investigation and that it had occurred. By the time she received notice about the investigation being concluded, Ms. Milsap had already submitted her residential facility application to APD. No evidence was presented to indicate that Milsap was ever notified by DCF concerning sanctions or penalties resulting from the investigation of her family day care home. Nor is there any evidence she received notification that would allow her to contest the findings set forth in the investigative report. She was simply notified that the investigation had been completed. APD is the state agency responsible for, inter alia, licensing and monitoring residential facilities. By letter dated May 19, 2014, APD notified Ms. Milsap that the application for licensure as a group home facility was being denied because she was “responsible for the abuse, neglect, or abandonment of a child.” The decision stemmed from the aforementioned investigation conducted by DCF in March 2014 at Milsap’s registered family day care home. What DCF had concluded in its investigation (and ultimately reported to APD) was that on or about March 5, 2014, Ms. Milsap was serving as the owner and operator of Milsap Family Day Care Home. On that date, there were three children being cared for at the home. A child (identified herein as B.H.) sustained approximately 13 bites on his head, arms, and back while in Milsap’s care. Milsap was in the kitchen preparing food for the children when the biting occurred. There was a half door separating the kitchen from the room where B.H. and two other children were playing. The entire playroom was not directly visible from the kitchen area. There were no adults physically inside the playroom when the biting occurred. Milsap does not dispute that B.H. was bitten several times by one of the other children in the playroom. She maintains that her presence in the kitchen area was not improper as she did not know one of the children may have a propensity to bite and, therefore, she had no reason to be physically present in the playroom at all times. She maintains that she was appropriately caring for the children at all times and that the biting incident was unforeseen and was not preventable. The biting incident was the first offense cited against Milsap’s Family Day Care Home. Milsap has a reputation for providing good, quality care to the children in her charge. After completing its investigation, DCF made a verified finding of “inadequate supervision,” an offense under the general umbrella of abuse or neglect. DCF recommended remediation as the sanction for the incident, but there is no evidence as to whether remediation ever occurred. It is clear, however, that no action was taken against the Family Day Care Home license. In fact, the home’s license was renewed by DCF at its next renewal date in August 2014. Also, the DCF investigation concluded that the risk to the child (B.H.) was “low” following the incident. Nonetheless, APD considered the incident serious enough to warrant denial of Our House’s application for licensure to operate a group home facility. The person who purportedly made the decision to deny the application, Tom Rice (licensing supervisor), did not testify at final hearing as to his reasoning or basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Agency for Persons with Disabilities, upholding its denial of the licensure application filed by Petitioner, Our House Too. DONE AND ENTERED this 23rd day of April, 2015 in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 23rd day of April, 2015.
