The Issue The issue in the case is whether the application for registration of the Tonya Rodreguez Registered Family Day Care Home (Respondent) should be denied.
Findings Of Fact Since 1994, and at all times material to this case, Mrs. Rodreguez has operated the Respondent, which is located at 2736 Lemon Street, Fort Myers, Florida. On October 25, 2010, Mrs. Rodreguez filed an application with the Petitioner for registration of the Respondent. The previous registration had lapsed. Since 1992, and at all times material to this case, Mrs. Rodreguez has been married to her husband, Terry Rodreguez (Mr. Rodreguez). In 1990, Mr. Rodreguez was convicted of possession of a controlled substance and a concealed firearm. Mrs. Rodreguez was aware of her husband's criminal conviction. The registration application included a section where an applicant was directed to list "OTHER FAMILY/HOUSEHOLD MEMBERS." The application filed on October 25, 2010, by Mrs. Rodreguez disclosed only herself and her three children. Mrs. Rodreguez did not list her husband on the application. On June 23, 2010, a child protective investigator (CPI) commenced an unrelated investigation of the Respondent and went to the Lemon Street address. Mr. Rodreguez was present in the home when the CPI arrived. The CPI testified without contradiction that Mr. Rodreguez was uncooperative. She returned to the Respondent later that day accompanied by a law enforcement officer, but, when they arrived, Mr. Rodreguez was no longer present at the Respondent. On June 24, 2010, the CPI returned to the Lemon Street address, and Mr. Rodreguez was again present. During questioning by the CPI on that date, Mr. Rodreguez stated that he resided in the home. Additionally, Mrs. Rodreguez advised the CPI that she and her husband had separated, but acknowledged that she and her husband both resided at the home. At the hearing, Mrs. Rodreguez asserted that she has been separated from her husband for many years; however, she acknowledged that they remain legally married, that he uses her address as his legal address, and that her address is listed on his driver's license. She testified that he is homeless and that he returns to the house to see her children. Mr. Rodreguez was issued several traffic citations between January and July of 2010, and all of the citations identified his address as 2736 Lemon Street, Fort Myers, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application for registration of the Tonya Rodreguez Registered Family Day Care Home. DONE AND ENTERED this 13th day of April, 2011, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2011.
The Issue The issue in the case is whether the Petitioner's application for licensure of a family day care home should be granted.
Findings Of Fact In June 2003, the Petitioner applied to the Respondent for a license to operate a family day care home. Tim Graddy, an employee of the Respondent, inspected the Petitioner's home located at 1031 Herschell Street, Lakeland, Florida 33815 on June 19, 2003. The purpose of the inspection was to determine whether the Petitioner's home met applicable requirements for licensure as a family day care home. The Petitioner was present at all times during the inspection. Upon completion of the inspection, the Petitioner received a copy of the inspection report and was instructed to contact Mr. Graddy to arrange for a re-inspection after the deficiencies identified in the report were corrected. The inspection report indicates that the Petitioner's background screening information had not been provided to the Respondent by the date of the inspection. According to the inspection report, the Petitioner was to provide such information to the Respondent by no later than August 18, 2003. The inspection revealed that the Petitioner's First Aid and CPR training certifications had expired. According to the inspection report, the Petitioner was to provide renewed certifications to the Respondent by July 19, 2003. Mr. Graddy noted that there were unsecured wooden logs stacked in a play area outside of the house. Additionally, the play area abutted a trafficked road, and the chain-link fence was sagging and did not properly surround the play area. According to the inspection report, the logs were to be moved and the fence repaired by July 19, 2003. Inside the house, Mr. Graddy observed that two floor mats used for napping had tears in the impermeable surface covering and that a high chair seat was torn. Also, the First Aid kit did not contain rolled gauze and required emergency telephone numbers (the abuse hotline and the poison control center) were not posted by the telephone. According to the inspection report, the cited deficiencies were to be remedied by July 19, 2003. Mr. Graddy had no further contact with the Petitioner until sometime in October of 2003, when he received a telephone message indicating that the Petitioner had called. Mr. Graddy returned the call, but was unable to contact the Petitioner. He left a telephone message, but did not hear back from the Petitioner. On or about November 18, 2003, the Respondent issued a Notice of Denial of the Petitioner's license application. The Notice of Denial sets forth the reasons cited by the Respondent for denial of the application as follows: Your background screening results reveal a criminal history that causes the Department to believe you cannot provide a safe and nurturing environment for children because of the nature of the charges, and the frequency of the disqualifying offenses. On June 19, 2003 an inspection of your proposed family day care home revealed the following violations of the Florida Administrative Code (F.A.C.). Your CPR and First Aid certification had expired; Rule 65C-20.009(2)(a), F.A.C. The outdoor play area had wooden logs that posed a safety hazard; Rule 65C- 20.010(1)(e), F.A.C. A section of the chain link fence was broken; Rule 65C-20.010(1)(f), F.A.C. Napping mats with tears in them; Rule 65C-20.010(1)(h), F.A.C. High chair with broken seat cover; Rule 65C-20.010(1)(o), F.A.C. Your first Aid Kit was incomplete; Rule 65C-20.010(3)(a), F.A.C. Emergency telephone numbers not posted, Rule 65C-20.010(3)(b)(1), F.A.C. At the hearing, counsel for the Respondent stated that Respondent was solely relying on the June 19, 2003, inspection report as grounds for denial of the Petitioner's application and withdrew the paragraph related to the Petitioner's alleged criminal history. The Petitioner testified at the hearing. During the testimony, the Petitioner stated that all the deficiencies cited in the inspection report had been addressed by the time of the hearing. The evidence establishes that some, but not all, of the deficiencies were corrected prior to issuance of the Notice of Denial. The background screening information was apparently provided prior to issuance of the Notice of Denial. The First Aid and CPR training certification was not renewed until February 21, 2004. Although the Petitioner testified that the logs were moved and the fence repaired, the evidence fails to establish whether the work was completed prior to the issuance of the Notice of Denial. The floor mats were discarded on the day of the inspection. The Petitioner testified that the high chair was discarded, that the rolled gauze has been replaced in the First Aid kit, and that the required telephone numbers have been posted. Because the Petitioner did not notify the Respondent until the date of the hearing that the deficiencies set forth in the inspection report have been remedied, there has been no inspection of the property to confirm that the repairs were appropriately made. There has been no inspection of the home since June 19, 2003.
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 operation of a family day care home. DONE AND ENTERED this 25th day of March, 2004, 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 25th day of March, 2004. COPIES FURNISHED: Gwendolyn Brison 1031 Herschell Street Lakeland, Florida 33815 Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner has grounds to impose a fine for a violation of the rule that requires the family day care operator to allow access to the entire premises of the family day care home for inspection.
Findings Of Fact At all times relevant to the allegations of this case, Respondent, Mary Higdon, was licensed by Petitioner to operate a family day care in her home. Barbara Ivey, DCF, has been the day care licensing representative for Respondent since 1996. At Ivey's first inspection of the day care home, Higdon refused her access to the master bedroom. Ivey did not note the violation. However, Ivey advised Respondent that the rule required that the entire premises had to be inspected. In 1998, during a scheduled appointment, Respondent again refused access to the master bedroom on the grounds that her husband worked nights and was sleeping. Ivey insisted that she must inspect the master bedroom and she would be back. When Ivey returned, she was able to inspect the master bedroom. In 1999, during a scheduled appointment, Respondent again refused access to the master bedroom. Ivey reminded her that Respondent had agreed to the time of the appointment and that this refusal was not acceptable. Respondent then stated that someone could "peek" in to the room while her husband slept. A trainee, who was with Ivey, went with Respondent toward the bedroom; the door was opened slightly, and the trainee peeked into the room but was not able to see into the dark room. On August 24, 1999, Ivey made an unannounced visit to Respondent's home to inspect the entire premises and re-check an air-conditioner that was out of compliance. This re-check was necessary for re-licensing. Ivey arrived at the home on a weekday during regular operating hours. Stacy Rivera, Respondent's daughter, answered the door to Ivey. Ivey identified herself and asked to inspect the premises. She explained to Rivera that the inspection would only take a moment. Rivera acknowledged that she knew that Ivey was an inspector for DCF. Ivey also noted that there were six or seven children present at the home. Rivera indicated that all of them were her children. Rivera stated her mother was out of town and refused to permit Ivey entry. Ivey requested that Rivera contact her mother so she could complete the re-licensing. Ivey observed Rivera calling someone, but did not know who. Rivera returned to the door and reiterated that Ivey could not enter. Rivera has not been screened to care for children. Rivera testified that she was not an employee of the family day care. Respondent did not notify Petitioner that the day care would not be in operation during the week of the inspection.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent was found guilty of violating Rule 65C-20.012(3), Florida Administrative Code, and that an administrative fine of $100.00 be imposed. DONE AND ENTERED this 7th day of August, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 7th day of August, 2000. COPIES FURNISHED: Carmen M. Sierra, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1792 Mary Higdon 7141 Green Needle Drive Winter Park, Florida 32792 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are: whether the Griffin Family Day Care Home violated provisions of chapter 402, Florida Statutes (2012),1/ and Florida Administrative Code Chapter 65C-20,2/ and, if so, what penalty should be imposed; and whether the Griffin Family Day Care Home's renewal application for a license to operate a regular family day care center should be approved or denied.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by the Griffin Day Care. 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 three times a year: two unannounced routine inspections (to ensure compliance with the applicable laws and rules) and one renewal application inspection. In the event of a complaint, additional inspections or investigations are conducted. Wanda Griffin owns and operates the Griffin Day Care, a family day care facility licensed by the Department. The facility is located at 1408 Unitah Avenue, Lakeland, Florida, and was in continuous operation at all times material to the issues herein. The facility has not been the subject of any prior disciplinary actions. Lydia Murphy is a child care licensing specialist for the Department. Ms. Murphy is trained to inspect family day care centers for initial applications, renewal applications, and routine inspections. Ms. Murphy is familiar with the facility, having inspected it between 15 to 18 times over the past five to six years. As a result of a complaint being made, DCF conducted an investigation of the facility. On Friday morning, March 23, 2012, a four-year-old child, S.B., was brought to the facility. Following some outside play time, S.B. and the other children came into the facility and were seated at a table for lunch. While Ms. Griffin was retrieving the pizza from the garage, S.B. got up from the table and left the facility via the front door. Ms. Griffin's granddaughter4/ told Ms. Griffin that S.B. was gone. Ms. Griffin immediately began a search for the child. Ms. Griffin contacted 911 and the child's mother. S.B. was located approximately one-half mile from the facility and was returned. There was no testimony about whether or not S.B. was ever in jeopardy while she was unsupervised. Although S.B.'s mother later told Ms. Griffin that S.B. was known to wander off, Ms. Griffin advised S.B.'s mother that she (Ms. Griffin) would no longer take care of S.B. Ms. Griffin admitted this incident occurred. On Tuesday, March 27, 2012, Ms. Murphy (and another DCF employee) interviewed Ms. Griffin about the Friday incident. During that interview, Ms. Griffin told Ms. Murphy that the lock on the front door was not engaged, as she (Ms. Griffin) had disengaged it to allow her daughter to enter the facility following medical treatment. At hearing, Ms. Griffin testified that the front door lock had been engaged when S.B. left the facility. When confronted that the incident occurred on a Friday and that she had told Ms. Murphy just four days after the incident (on Tuesday) that the door lock was disengaged for her daughter, Ms. Griffin claimed that her daughter did not go for the medical treatment on that Friday. Ms. Griffin's testimony is not credible. Leviticus Griffin is Ms. Griffin's husband. They lived together in Plant City for a time and, in 2001, moved to Lakeland. Ms. Griffin testified that, when she applied for (the child care) licensure, they were not living together, as she was living "on housing," and Mr. Griffin was living elsewhere. On four or five inspection visits when Ms. Murphy saw a white truck in the drive-way, there was a man present on the facility property. Ms. Murphy did not see him inside the facility. Ms. Murphy was told he was the yardman. Ms. Griffin maintained that Mr. Griffin was not the yardman. Ms. Griffin testified that the yardman was "one of my grandbaby's uncles" and that she had forgotten his name. Ms. Griffin maintained that this yardman had been her yardman "since she had moved in." Ms. Griffin's testimony is not credible. At the hearing, Ms. Griffin claimed that, when Ms. Murphy saw Mr. Griffin at the facility, he was there to talk about health issues. On the 2012 renewal application, submitted on May 8, Ms. Griffin did not report that Mr. Griffin was residing in the facility. As she was reviewing the 2012 renewal application, Ms. Murphy saw a copy of Mr. Griffin's driver's license and identified him as the yardman she had seen at the facility. In performing the required renewal application investigation in May 2012, Ms. Murphy "put two and two together" and decided that Mr. Griffin was living in the facility. Ms. Murphy investigated Mr. Griffin. Ms. Murphy determined Mr. Griffin had two disqualifying offenses that would preclude his living at the facility unless or until he received an exemption from those disqualifying offenses. Ms. Murphy called and told Ms. Griffin that she was adding Mr. Griffin's name to the 2012 renewal application as a person living in the facility. Ms. Griffin did not object to Mr. Griffin's name being added to this application and indicated she "was going to add him to the license." Although Ms. Murphy testified she spoke with the landlord, Fred Leslie, about who was living in the facility, that testimony is hearsay and was uncorroborated through other competent evidence or testimony. At some undetermined time, a copy of Ms. Griffin's 2008 rental application5/ (Exhibit 2) was provided to DCF. That rental application, which Ms. Griffin executed on June 2, 2008, does not contain an address on the "Rental Property Address" line, nor is it a rental agreement. The name, "Leviticus Griffin," is on the rental application as an additional occupant of the property; however, there is no evidence that this application was for the facility property. Ms. Griffin maintained that Mr. Griffin was not living at the facility at that time, but that he lived elsewhere. DCF presented a certified copy (Exhibit 5) of the Florida Department of Highway Safety and Motor Vehicles, Intranet Records Information System (IRIS). IRIS documented multiple vehicle transactions and driver license transactions involving Mr. Griffin. IRIS reflects that Mr. Griffin's address, as of the "Issue Date" for this record, March 4, 2008, was that of the facility. Mr. Griffin did not testify in this proceeding. Five of the six DCF applications or renewal applications (Exhibit 3)6/ for licensure submitted by the facility identify no one other than Ms. Griffin as living in the facility. The sixth application, the 2012 renewal application form, reflects Ms. Griffin's name on one line and Mr. Griffin's name on the second line where Ms. Murphy inserted and dated the addition. It is noted that the 2007 DCF "renewal" application is for an address different than the address at issue. Beatriz Blanco is a DCF exemption screening specialist with over six years of experience. Mr. Griffin first came to Ms. Blanco's attention in May 2012. Mr. Griffin submitted a request for an exemption. Ms. Blanco wrote Mr. Griffin asking him to provide information about two disqualifying offenses. In July 2012, Ms. Blanco received a partially-completed application from Mr. Griffin. In late July 2012, a letter seeking additional information was sent to Mr. Griffin at his address of record, 1408 Unitah Avenue, the same as the facility. As of February 6, 2013, Mr. Griffin had not submitted any additional information for further consideration of his exemption request.
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 the Griffin Family Day Care Home committed the Class I violations, imposing an administrative fine of $1,000.00, and denying its renewal application. DONE AND ENTERED this 28th day of February, 2013, 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 28th day of February, 2013.
The Issue The issue is whether to deny Petitioner's application to renew her registration to operate a family day care home for the reasons stated in the Notice of Denial dated April 7, 2017.
Findings Of Fact The Department is the agency charged with the responsibility of licensing and registering family day care homes. See § 402.313, Fla. Stat. A family day care home is an "occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care." § 402.302(8), Fla. Stat. In order to operate a family day care home, the home must be licensed or registered by the Department. § 402.312(1), Fla. Stat. Unlike a licensed home, which is subject to more regulatory oversight, a registered home is not subject to periodic inspections, and the home is only required to undergo an annual evaluation during the registration process. § 402.313(1), Fla. Stat. Petitioner has operated a registered family day care home under the name of Little Bright Stars of Orlando at 4419 Fairlawn Drive, Orlando, for several years. Her most recent registration expired on March 9, 2017. This proceeding concerns Ms. Rosado's application for renewal of her registration. Unless a complete renewal application is filed, the application will be denied. § 402.313(1), Fla. Stat. This is because the Department has no authority to approve an incomplete application conditioned on an applicant filing the missing items at a later time. On March 9, 2017, Petitioner filed her renewal application with the Department. The application did not have the following required items: the application fee; a list of children in her care; a copy of the current immunization record for each child in her care; a copy of a training certificate, an in-service training record form 5268, or a continuing education unit certificate documenting ten clock hours of annual in- service training; a copy of the completed Registered Family Care Home Health and Safety Checklist; a copy of the tear-off section signed by the parent or legal guardian for each child in her care; a copy of the completed Child Abuse & Neglect Reporting Requirements form, signed and dated by the substitute(s); and a Level 2 Background Screening (livescan) for the operator, adult household members, and substitute(s). Petitioner was sent an email the following day informing her that she must file the incomplete and missing items. When the application was filed, Petitioner had several health-related issues, which required her to temporarily stop caring for children in her home. At that time, she was forced to make a choice between paying her medical expenses or the costs associated with renewing her application. She chose the former and submitted an incomplete application without a filing fee. Once the Notice of Denial was issued, Petitioner decided there was no reason to incur the costs associated with the missing items until she knew whether her application would be approved. As of the date of the hearing, the application was still incomplete. Pursuant to section 39.201(6), Florida Statutes, information in the Department's central abuse hotline and automated abuse information system may be used in its evaluation of a registration application. In May 2016, the Department received a complaint that Petitioner's home was "operating illegally," and she had forced a three-year-old child to clean up his urine when he had an accident. Petitioner characterizes the complaint as "false" and asserts it is based on erroneous information provided by a disgruntled parent who just removed her two children from the home. The Department's subsequent investigation belies this contention. In response to the complaint, a Child Institutional Investigation was conducted by a Department Licensing Counselor and a Child Protective Investigator on May 23, 2016. While investigating the urine incident, the investigators observed an unscreened person, Petitioner's 17-year-old daughter-in-law, living in the home and assisting with the care of the children. They also observed children sleeping on the floor with no mats, a leaking ceiling in the area where the children play, and paint cans that were accessible to the children. These conditions violate Florida Administrative Code Rule 65C-20.010, which establishes health and safety-related requirements for family day care homes. The Department closed the investigation on July 4, 2016, with verified findings of inadequate supervision and environmental hazards. See Dep't Ex. B. The report concluded that based on the confirmed findings, the safety assessment was "low," meaning the deficiencies did not present a high risk of injury to the children. Petitioner was notified by letter dated August 16, 2016, that the investigation was closed and she could request a copy of the report. Petitioner did not request a copy, and she saw the report for the first time when the Department pre-filed its exhibits. At hearing, most of Petitioner's evidence addressed the confirmed findings in the abuse report. She questioned why she was never offered a hearing to contest those findings, but there is no statutory requirement that the Department conduct a hearing to allow a perpetrator to challenge a confirmed report. In any event, Petitioner was allowed to respond to the findings in the report and to provide evidence to mitigate or contradict the observations of the investigators. Petitioner also questioned why a second inspection was never conducted by the Department to determine if the violations observed during the May 23 investigation had been corrected. An abuse investigation, however, differs from a licensing inspection, and there is no requirement that the Department conduct a second inspection to verify that abuse violations have been corrected. At hearing, Petitioner explained that her 17-year-old daughter-in-law was a temporary occupant of the home while her husband (Petitioner's son) was on active duty in the military. She admitted, however, that the daughter-in-law was not screened, which is a requirement for all persons having contact with the children in a family day care home. She also acknowledged that her husband resides in the home but is not screened. At hearing, Petitioner denied that she had forced a child to clean up his urine. She explained that the child had actually spilled water on the bathroom floor while washing his hands and she made the child clean up the spilled water. During the investigation on May 23, 2016, however, Petitioner admitted to the investigators that the child had continued to urinate on himself and she required the child to clean up the urine in the hope that he would not do this in the future. This is a Class 1 violation of rule 65C-20.010(6)(a), which prohibits humiliating a child as a disciplinary measure. It also meets the definition of "abuse," as defined in section 39.01(2), and "harm," as defined in section 39.01(30). For these reasons, the abuse report confirmed the finding of inadequate supervision. Petitioner further explained that on May 23, 2016, her husband was in the process of making repairs to the leaking roof and the damaged ceiling in the home, and these repairs were completed shortly after the investigation. After being told that sleeping mats were required for the children, Petitioner purchased ten mats for the children. Even so, these deficiencies were observed on May 23, 2016, are confirmed by testimony and photographs received in evidence, and are grounds to verify the abuse allegations. Two parents who have used Petitioner's services attested to her good character and the quality of care that their children receive. They urged that the home be allowed to remain open. Even if the abuse report is not considered, the Department would still be required to deny the application because it is incomplete. According to a Department witness, if a complete application had been filed, denial would still be required based on the confirmed abuse report.
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 denying Petitioner's application to renew her family day care home registration. DONE AND ENTERED this 13th day of July, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2017. COPIES FURNISHED: Lisa M. Eilertsen, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Cynthia Rosado 4419 Fairlawn Drive Orlando, Florida 32809-4409 (eServed) Rebecca Falcon Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Brian Christopher Meola, Esquire Department of Children and Families. Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1707 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
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 is whether Respondent should deny Petitioner's renewal application to operate a registered family day care home on the grounds that her failure to properly supervise children at her registered family day care home demonstrates Petitioner's inability to ensure the safety of children under Petitioner's care.
Findings Of Fact Respondent is the state agency responsible for registering family day care homes in Florida. Petitioner operated a registered family day care in her home for at least one year prior to her May 5, 2006, renewal application to operate a registered family day care home. Respondent proposes to deny that application. By letter dated July 27, 2006, Respondent notified Petitioner that Respondent proposed to deny Petitioner's application to operate a registered family day care home (the "Notice of Denial"). The Notice of Denial provides that on April 7, 2006, Petitioner failed to properly supervise children at her registered family day care home, in violation of Section 402.301 et seq., Florida Statutes (2005). The Notice of Denial states that, as a result of Petitioner's failure to properly supervise the children, one child bit another more than one time, and the child who was bitten had to be taken to the emergency room, which led to investigations by both the police and Respondent's protective investigation unit. Respondent's protective investigation unit closed the case on June 5, 2006, with verified findings of neglect for the inadequate supervision that led to the injuries of the child who was bitten. The undisputed facts were that, on April 7, 2006, Petitioner was caring for at least two children at her registered family day care home. A.H. was an 11-month-old male who had just begun staying at Petitioner's home. Petitioner did not have a crib in the home. At the suggestion and with the consent of A.H.'s mother, A.H. was strapped into his car seat for his nap. The car seat was placed on the floor of a bedroom in Petitioner's house. The second child, identified at the hearing only as E., was an 18-month-old male. E. was placed in a playpen for his nap, in the same bedroom as A.H. Petitioner knew that E. was capable of climbing out of the playpen. The bedroom door was closed while the children napped. While the children were sleeping, a female neighbor knocked at Petitioner's door and asked to use her telephone. The two women stood talking in the doorway for at least five minutes. The neighbor heard screams coming from the bedroom, and asked Petitioner if she shouldn't check on the situation. Both women walked into the bedroom and saw E. standing over the crying A.H., who was still strapped into his car seat. Petitioner called out to E. to stop biting A.H. Petitioner applied ice to A.H.'s swollen left eye. She testified that she attempted to phone A.H.'s mother, but could not reach her. When A.H.'s mother picked him up from Petitioner's home, she called the police and took the child to the emergency room at the Orlando Regional Medical Center. A.H.'s left eye was swollen. There were scratches and small bite marks on the left side of his face and his left arm. All of his injuries were consistent with his having been bitten and scratched by E. There was no indication that A.H. had been abused by an adult. Victor Kruppenbacher, Respondent's investigator, testified that his investigation revealed that Petitioner had been arrested for assault and battery in the 1980s, and that two prior abuse reports had been lodged against her. Mr. Kruppenbacher further testified that Petitioner lied to him about both the arrest and the abuse reports. Petitioner testified that she had already had problems with E.’s climbing out of the playpen, and that it was against her better judgment to place A.H. in the car seat for a nap. Petitioner nonetheless placed both children in the same room, behind a closed door, and did not herself notice A.H. crying until her neighbor pointed it out to her. Respondent should not grant Petitioner's application to operate a registered family day care home. Petitioner failed to establish that she is able to ensure the safety of children to the level necessary to operate a registered family day care home.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's renewal application to operate a registered family day care home. DONE AND ENTERED this 4th day of January, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2007. COPIES FURNISHED: Angela Collier 2931 Grandola Drive Orlando, Florida 32811 Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the family day care license of Respondents.
Findings Of Fact Respondent has been registered with the Department as a family home day care provider since September of 2001. A registered family home day care does not have to meet all of the requirements that a licensed day care home must meet. However, the same background screening and training requirements must be met. Registered family day care homes are not inspected as often as licensed homes. Each year, the registered provider must complete a renewal application that, among other things, identifies household members and substitute care-givers. The operator of the home and all household members are required to pass a Level 2 background screening. Additionally, registered family home applicants must pass a 30-hour family day care home training, a five-hour early literacy course, and each year, complete 10 hours of in-service of continuing education. Operators of the registered homes must designate a substitute care provider who is also required to go through the background screening. Ms. Huewitt designated Teresa Clary as her substitute care provider on her 2007, 2008, and 2009 applications. Previous Disciplinary Action On three occasions in the fall of 2008 and on one occasion in February 2009, Respondent was found to be out of compliance with ratio requirements, i.e., caring for more children than allowed. Additionally, in November 2008, the Family Services Counselor from the Department called the home and the phone was answered by one of Ms. Huewitt’s adult daughters. That daughter informed the Family Services Counselor that Ms. Huewitt was not home and would be back shortly. The Department then determined that this violated the substitute care requirement as Teresa Clary was designated as the substitute care provider. As a result, the Department issued an Administrative Complaint on January 12, 2009, regarding two incidents of being out-of-ratio and for violation of “listed substitute requirements.” A $300 fine was imposed and the registration was placed on probationary status in February 2009. In a letter dated August 27, 2009, the Department informed Ms. Huewitt that the Probationary Registration was lifted effective August 9, 2009, because “the Operator has been in compliance with ratio and capacity requirements during periodic monitoring/inspections while on probationary registration.”2/ Facts concerning the Amended Notice of Administrative Action Ms. Huewitt has three adult children: Jennifer Oliver, Stephanie Oliver, and Anthony Oliver. Jennifer Oliver was listed as an “other family/household member” on the 2007, 2008, and 2009 applications. As a result, a background screening was conducted on Jennifer. The background screening revealed a disqualifying offense. Jennifer requested an exemption from disqualification, but was denied. Consequently, Jennifer Oliver was not permitted to be in the home during the operational hours of the day care. On February 2, 2009, Ms. Huewitt entered into a safety plan in which she agreed not to allow her daughter, Jennifer, to supervise the children while in her care, or even to allow Jennifer to be in the residence while children are in her care during business hours. Despite this, on August 11, 2009, at approximately 9:25 a.m., the Family Services Counselor, Miatta Jalaber, went to Ms. Huewitt’s home and saw Jennifer in the home. Jennifer exited the home as Ms. Jalaber did her walk-through. As a result, Ms. Jalaber called her supervisor, who instructed Ms. Jalaber to write another safety plan for Ms. Huewitt. The August 11, 2009, safety plan was hand-written by Ms. Jalaber while at Ms. Huewitt’s home day care and states, “I Alisa Huewitt understand that my daughter, Jennifer Oliver, must not be present in my residence [address] during operating hours 7:30 a.m.-6:00 p.m. M-F while I have children in care.” The safety plan was signed by both Ms. Jalaber and Ms. Huewitt. Ms. Jalaber made subsequent visits to Ms. Huewitt’s home on October 30, 2009, December 29, 2009, January 29, 2010, February 5, 2010, February 19, 2010, and March 30, 2010. No other persons were present and Ms. Huewitt’s home was in ratio during those visits. She did observe Jennifer in the home on April 16, 2010, but the day care was closed that day. Stephanie Oliver is not listed on any of the applications as a person residing in the home, but has been seen at Ms. Huewitt’s during hours when the day care is open. While there was some testimony that both Stephanie and Ms. Huewitt’s son Anthony have some sort of criminal background and that they have been seen at the day care during business hours, the record is insufficient to establish that their criminal records contain disqualifying offenses, or that they actually live in the home. What is clear is that Ms. Huewitt is of the belief that it is not necessary to list persons who do not actually reside in the home, but who frequently visit the home, on her applications under the category “Other Family/Household Members.” There were instances in which Ms. Jalaber went to the day care home and was led to believe that Jennifer Oliver was Stephanie Oliver. Ms. Jalaber only learned that the daughter she saw and spoke to at the home was Jennifer, who was not supposed to be there during working hours, when she attended Jennifer’s exemption from disqualifying fact-finding meeting. While the record is insufficient to clearly support a finding that Ms. Huewitt lied to Ms. Jalaber about her daughter’s identity, she was not forthcoming with clarifying the confusion. In July 2009, the Department received an abuse report that Ms. Huewitt’s grandson, Kory Hill, Jr., sustained a skull fracture in her residence during business hours. Ms. Jalaber went to Ms. Huewitt’s home, not to investigate the abuse report, but because there was concern that Kory Hill, Sr., who reportedly was taking care of Kory Hill, Jr., on the day of the incident, was residing in the home. Kory Hill, Jr., is Jennifer’s son. Ms. Jalaber addressed her concerns with Ms. Huewitt.3/ During this visit, Ms. Jalaber learned that there was a separate structure in back of Ms. Huewitt’s house. Ms. Jalaber describes it as being just three steps in back of the main house. The structure contains a large room, a closet, and a bathroom and will hereinafter be referred to as “the apartment.” Ms. Jalaber observed clothes in the apartment’s closet and throughout the apartment, and sofa cushions on the floor. It appeared to Ms. Jalaber that someone was residing in the apartment. Ms. Huewitt denies that Mr. Hill, Sr., resided in her home. However, Ms. Huewitt acknowledges that her infant grandson, Kory Hill, Jr., was injured while in the care of his father, Kory Hill, Sr., and that the injury took place in the apartment in back of her house. The injury took place during the day while children were in her care in the main part of her house. Jhaismen Collins is a Child Protective Investigator with the Department. She was assigned to investigate the abuse report regarding this incident. Her investigation began July 1, 2009, at the emergency room where Kory Hill, Jr., had been taken. While there, she spoke to Ms. Huewitt and other family members present in the emergency room. She then made several visits to Ms. Huewitt’s home to follow-up, after the baby was discharged from the hospital. During the follow-up visits, Ms. Collins observed Stephanie in the home and observed Kory Hill, Sr., packing his belongings to leave the home. While the evidence is inconclusive as to whether Mr. Hill actually resided in the apartment behind Ms. Huewitt’s home, it is clear that he frequented the home and the apartment behind the home to visit his son. His son, Kory, Jr., and another son, Kentavious, who is also Ms. Huewitt's grandson, are now attending Ms. Huewitt’s day care. Ayuana Hale is a Dependency Case manager for the Department. Her job is to provide needed services to the child and family in the case of a verified finding of abuse, neglect, or abandonment. She was assigned to the case involving Kory Hill, Jr., after the abuse investigation was closed as verified. Ms. Hale testified that Mr. Hill is currently incarcerated. She has knowledge of this because she is obligated to try to offer Mr. Hill services while he is incarcerated. Parents of children who attend Ms. Huewitt’s home day care are extremely complimentary of the care their children receive, and are not concerned with the safety of their children while there.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order placing the license on probation, requiring Respondent to attend further training in the requirements of applicable statutes and rules regarding who must be listed on her applications, requiring those listed to undergo background screening, and requiring successful completion of such training, with no further incidents, prior to approval of Respondent's application for renewal of her registration. DONE AND ENTERED this 24th day of June, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 June, 2010
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 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.
