The Issue Whether Respondent proved by clear and convincing evidence the allegations contained in its August 27, 2004, letter denying Petitioner's licensure renewal application.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; exhibits admitted into evidence; stipulations and arguments of the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2004); and the record complied herein, the following relevant and material facts are determined: The Parties Respondent is the state agency responsible for licensing, inspecting, and regulating child care facilities, including family day care homes. Respondent is authorized to inspect a family day care home at any time. Regular and routine inspections, as well as inspections resulting from complaints received, are conducted of licensed family day care homes to ascertain whether the home is in compliance with applicable statutes and promulgated rules. Violations (or "non-compliances") of statutes and rules and/or other problematic situations found during inspections are noted on a hand-written inspection report. The inspector takes those noted non-compliance items back to the office and transfers them to Respondent's "Family Child Care Home Inspection Checklist" (Inspection Checklist).1 Inspectors may or may not discuss each non-compliance item with the home operator at the time of the inspection. On those occasions non- compliance items are discussed with the home operator, those items capable of instant correction are corrected before the inspector departs the premises. When appropriate, the Inspection Checklist provides a time frame within which the operator must correct the cited non-compliance item(s) indicated on the Inspection Checklist. The Family Day Care Home Facility Ms. Lanier is the provider and licensed owner of Lanier Family Day Care Home ("the care facility") located at 1039 Madison Avenue, Lakeland, Florida. Ms. Lanier is a tenant at this location, and Angela Lisbon and/or her relatives are the landlord. The Inspections and Cited Violations Tim Graddy conducted a re-licensure inspection of the care facility on August 7, 2003. Re-licensure inspections are conducted when the family child care owner's current license is about to expire, and the owner's application for re-licensure has been filed. The non-compliance items recorded on the Inspection Checklist were: operator's training in first aid not current, operator's CPR training not current, litter (foam cups) in the children play area, access to a road and a four-foot fence was "not provided"--the gate needed repair, floor mats not covered with impermeable surface, evidence of rodents/vermin in the home, one broken window needs replacement, no operative landline telephone available-only cellular telephone available, and supplies missing from first aid kit. At the time of Mr. Graddy's re-inspection on August 18, 2003, all non-compliance items recorded on the Inspection Checklist dated August 7, 2003, had been addressed and corrected by Ms. Lanier, but for the vermin infestation. However, Ms. Lanier's request of her landlord to exterminate the property to address the reoccurring problem of vermin infestation had occurred. On March 31, 2004, Nianza Green, another inspector, completed a routine child care licensing inspection of the child care facility. The non-compliance items noted by Ms. Green on the Inspection Checklist were: unsafe storage of materials dangerous to children was observed in that cleaning supplies were in an unlocked cabinet and in the bathroom; water hose, dirty towels, and some mops on playground--play areas in home not clean; and evidence of rodents/vermin in home--"most [sic] have professional pest control before next visit. Copy of inspection to be faxed or mailed to licensing office"; all parts of the home and premises including furnishings and equipment were not kept clean and sanitary; all parts of the home and premises including equipment, furnishings and plumbing were not kept in orderly condition; meals and snacks supplied by the operator were not of a quantity and/or quality to meet the daily nutritional needs of the children; soiled items were not disposed of in a plastic lined, securely covered container; potty chairs were not cleaned and sanitized after each use; diaper changing surface was not cleaned with a sanitizing solution after each use--used as a storage, cords and other harmful items on shelves of changing table; first aid kit missing some supplies; monthly fire drills not conducted; written record of fire drills not completed; operator did not have record of drills for the past six months; and neither DH Form 680, Certification of Immunization, nor DH Form 681, Religious Exemption from Immunization, was on file for child(ren). On April 29, 2004, Mr. Graddy conducted a routine inspection of the care facility. Mr. Graddy listed the following non-compliance items on the Inspection Checklist: unsafe storage of materials dangerous to children was observed in that disinfectant was left on lower shelf of changing table, children in the outdoor play space had access to a trafficked road/street, and fencing a minimum of four feet in height was not provided--top rail of fence broken in front corner of fence, and evidence of rodents/vermin--live bugs observed in kitchen. On August 11, 2004, Mr. Graddy conducted a re-licensure inspection of the care facility and listed the following non- compliance items on the Inspection Checklist: front gate is not in good repair and does not close properly, live bugs seen in kitchen, loose pieces of ceramic title in kitchen, no operable smoke detector, up-to-date and age-appropriate immunization record missing, and DH Form 3040 not available. On May 6, 2004, by certified mail, Respondent issued an "Intent to Impose Administrative Action" letter, citing that repeated violations were revealed during four inspections conducted on August 7, 2003; August 18, 2003; March 31, 2004; and April 29, 2004. For those repeated violations, Respondent levied a $330 fine.2 Respondent's Cross-Examination re: Inspection Checklist Regarding his August 7, 2003, inspection, Mr. Graddy acknowledged that the inspection report indicated no children were present during the inspection, and, thus, no children were in any immediate danger as a result of the cited non- compliances. The cited non-compliance, fence was "not provided," was, in fact, the gate itself closed but the latch did not close properly. Therefore, no children were in immediate danger. Mr. Graddy acknowledged that the August 18, 2003, re- inspection Inspection Checklist listed a non-compliance item contained in the August 7, 2003, Inspection Checklist, and that the August 7, 2003, non-compliance items had been corrected, but for the vermin infestation. Mr. Graddy was informed by Ms. Lanier that the exterminator (landlord) had been contacted and that he/she would exterminate the care facility. No children were present at the care facility during the August 18, 2003, inspection and, therefore, were not subjected to any harm or immediate danger. Ms. Green acknowledged that her March 31, 2004, inspection did not accurately reflect the conditions of the daycare. Specifically, she described the non-compliance item as the property was "cluttered up"; yet, she failed to describe in the inspection report what she meant by that term. Ms. Green's report indicated that the potty chair was not cleaned after each use; however, upon cross-examination, Ms. Green admitted that she never saw the potty chair being used by the one child in the care facility at the time of her inspection. Likewise, she reported that the diaper changing table surface was not cleaned after each use although she never saw the diaper changing table being used and had no idea whether the allegation had a basis in fact. Ms. Green's Inspection Checklist noted, "[t]he center was not stocked with adequate supplies of food," but she never checked the food cabinets and other storage areas. Ms. Green testified that a bucket was present outside the facility and presented a hazard to children, but she did not note this particular non-compliance on her Inspection Checklist. Ms. Green was unable to confirm that Ms. Lanier was even aware of the "bucket" non-compliance. Ms. Green's Inspection Checklist noted fire drills "had not" been conducted, when, in fact, she was fully aware that fire drills had been conducted on a monthly basis. Ms. Green knew the approved capacity of the care facility was ten children, but only one child was present during her inspection. She could not articulate whether the "missing" immunization records were missing for a particular child or children, if any. After her walk-through, Ms. Green spent little time in the care facility and chose instead to "work" (list her non- compliance items) in her car because she "was concerned about bugs" she believed to have been in the facility might adversely affect her computer. When asked if she advised or discussed with Ms. Lanier her problems and concerns, Ms. Green stated that her job was to "inform the supervisor of the inspecting." At the time of this inspection, Ms. Green had worked as an inspector for only three months. Regarding the April 29, 2004, inspection, Mr. Graddy noted one child present and that child "did not have access to disinfectant near the changing table." His notation, the "top rail of the fence broken in the far corner," was not a repeated violation of an existing problem previously noted. Mr. Graddy also testified that any gaps that existed in the fence were not in sections of the fence less than the required four feet height; therefore, no children were placed at risk or were endangered in any manner by the alleged condition of the fence. Regarding "vermin in the facility," Mr. Graddy acknowledged that he only saw "more than two," acknowledging more than two was not "infestation." Regarding the August 11, 2004, inspection, Mr. Graddy testified that his notation, "the fence [gate] would not lock," on the Inspection Checklist was made without him actually attempting to lock the gate, and, thus, he acknowledged his notation was speculation. He added that this particular problem was different from prior fence problems and did not constitute a repeat violation. The "broken tile" problem noted on this Inspection Checklist had not previously existed; likewise, this non-compliance was not a repeat violation. Mr. Gaddy's non-compliance notation, "smoke detector missing," was that in reality the smoke detector was "present," but the battery may have run down. Mr. Graddy gave Ms. Lanier until the next day to correct this problem, but he never checked back for compliance. Likewise, Ms. Lanier contacted the telephone company and had the landline telephone that was present in the care facility activated which corrected the "no landline telephone" non-compliance item. Regarding the medical records for children non- compliance items noted by Mr. Graddy, he did not check whether the missing medical records on file were for the four children present on the day he noted this item or other children who were not present. Thus, he was unable to identify any specific medical records that were missing. According to Mr. Graddy, "he always goes over the inspection report with the provider, gives them a date after which the noted infractions need be corrected." His above self- imposed inspection standard was later qualified by his admission that he did not provide Ms. Lanier an opportunity to correct/comply with non-compliances contained on his Inspection Checklist before declining renewal of her current license number F14PO0266. Immediately after the August 11, 2004, inspection, the Department determined to deny Ms. Lanier's license renewal application request. The $330 fine issued against Ms. Lanier by the Department on May 6, 2004, was based upon five facility inspections that had occurred on August 7, 2003; August 18, 2003; March 31, 2004; April 29, 2004; and August 11, 2004. Ms. Lanier paid the $330 fine on August 26, 2004. The Department accepted and deposited Ms. Lanier's $330 fine despite the obvious fact that the Department had decided to deny Ms. Lanier's pending license renewal application at the time it levied the fine and accepted her $330 payment of the fine. Ms. Lanier's testimony that she paid the $330 fine on August 26, 2004, with the understanding that her license renewal application would be granted, went unchallenged by the Department. On this particular point, the lack of challenge by the Department regarding this ambiguous statement, whether Ms. Lanier's understanding was induced by suggestion or silence or was assumed in the absence of explanation to the contrary by accepting the $330 fine, is resolved in favor of Ms. Lanier. Patricia Hamilton, child care licensing supervisor, did not personally perform inspections of this facility. She compiled the five inspection reports submitted by the inspectors, charted those inspections, and assumed each non- compliance item on each subsequent inspection was a repeated non-compliance item; when, in fact, they were not. Ms. Lanier testified that upon notice of vermin, she contacted her landlord who sprayed for bugs on regular monthly intervals. Ms. Lisbon, landlord's representative, confirmed that Ms. Lanier made more than one request for additional extermination of the property. Ms. Lanier testified that she addressed/corrected non- compliance items identified by the Department's inspector(s) during their several inspections of her facility. Many small items were corrected by the close of business on the day noticed. Items such as floor mats were replaced, foam cups and other debris in play area were removed, food supplies were available in storage in the house (during spring break the kitchen itself was not stocked as it would be during a normal school week), broken window was repaired, smoke detector battery was replaced, and first aid supplies were replenished. The continuous efforts demonstrated by Ms. Lanier evidenced a sincere intent and cooperative desire to comply with the Department's rules and regulations, noted and interpreted by the several inspectors at the time they inspected the facility, to provide a safe and necessary family day care home for working parents in her immediate community. The Department proved that the facility had a reoccurring bug problem. Without more, a "reoccurring bug problem," common in many areas, does not, ipso facto, equate to infestation.3 When noticed, Ms. Lanier did not fail or refuse to address this issue, she secured extermination and, from the property owner, requested monthly treatments thereafter. The Department did not allege nor introduce evidence of any probability that death, serious harm to the health or safety of any person would, could, or had resulted, nor evidence of the severity, the actual or potential harm, and the extent to which Sections 402.301 through 402.319, Florida Statutes (2004), had been violated. There is no evidence of record whatsoever that any child was harmed or evidence that a particular or a combination of specific non-compliance items, not timely corrected, presented a hazard to the children observed in the facility. The Department's post-hearing argument in vague terms such as "understandably concerned" and "were justified in expecting," "did not rehabilitate her or correct her propensity to violate," and "Department justifiably had enough" are statements open to more than one interpretation and does not constitute direct evidence of an objective standard by which to evaluate appropriate conduct or lack thereof.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order issuing to Petitioner a provisional license until the following conditions are met to the satisfaction of Respondent: Petitioner provides documentation that a licensed extermination service has serviced the facility for vermin. Petitioner provides documentation of a quarterly, semi- annually, or monthly service agreement between Petitioner and a licensed extermination service. DONE AND ENTERED this 18th day of April, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 18th day of April, 2005.
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 Whether the Department of Children and Family Services (the "Department") had just cause to revoke the license of Petitioner to operate a family day care home.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: From April 15, 1987, through March 31, 2001, Marcia Edwards operated a registered family day care home at 15475 Chloe Circle, Fort Myers, Florida 33908. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care home involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home must comply with the limits on the number of children under care, as set forth in Subsection 402.302(7), Florida Statutes. Ms. Edwards had been reminded of the requirement for background screening of household members at least once, via letter dated February 12, 1993. Nonetheless, the Department received two complaints in December 1994, regarding the presence of an unidentified person in the home. One complaint noted that an "unidentified male houseguest was eating and drinking the children's food." The second complaint noted that Ms. Edwards was out of town and left the children in the care of her mother and "a guy named Wayne." On January 4, 1995, the Department sent Ms. Edwards a letter informing her of the complaints and reminding her that she could not leave children with persons who had not undergone background screening. The letter noted that neither Ms. Edwards' mother nor "Wayne" had undergone background screening. The adult male referenced in the complaints was Wayne Brueckman, who was residing in the Edwards home. On February 6, 1995, in compliance with the Department's letter, Ms. Edwards submitted the necessary information to initiate background screening on Mr. Brueckman, listed as a "Household Member" and "Sitter/Relief." Mr. Brueckman's background screening revealed no disqualifying information. Ms. Edwards was reminded of the statutory capacity limitations in person and in writing at least 11 times between September 1987 and June 1999. On at least five occasions, Ms. Edwards responded that she understood the capacity limitations. Nonetheless, Department employees personally observed violations of the capacity limitations on at least five separate occasions. By letter dated July 7, 1999, the Department gave Ms. Edwards an administrative warning that she would be subject to imposition of a fine if she continued to operate in violation of the statutory capacity limitations. On August 13, 1996, an abuse report was received by the Department that Wayne Brueckman sexually abused D.S., a three- year-old boy, in the Edwards home. The child had told his mother that Mr. Brueckman kissed his penis, put a "white thing" in his anus, and spanked him when he defecated in his pants. However, the child would not repeat his allegations to protective investigator Mae Cook, and an examining physician could find no physical evidence of sexual abuse. Mr. Brueckman denied the allegations. Ms. Edwards was interviewed by Ms. Cook concerning the August 13, 1996, complaint. Ms. Edwards denied any inappropriate activity and vouched for Mr. Brueckman as her friend of 20 years. Though she closed the file because she did not have sufficient evidence to confirm the allegations, Ms. Cook strongly suggested that children staying overnight not be allowed to sleep in Mr. Brueckman's room and that he not be left alone at any time with children, to avoid any repetition of such allegations. A repeated citation in the violation notices from this point forward was that Ms. Edwards would leave Mr. Brueckman alone with the children in her care for extended periods of time. Concerns regarding Mr. Brueckman were also raised during an investigation of another sexual abuse report received by the Department on November 18, 1996. This complaint involved Z.A., a three-year-old boy in care at the family day care home. The child told a story of some adult in the Edwards home rubbing his genitals, but his limited verbal skills made it unclear whether a man or woman did the touching. Wayne Brueckman and Marcia Edwards were both interviewed by the protective investigator and both denied any inappropriate activity. Again, there was no physical evidence to confirm the allegations. On February 5, 2001, the Department received an abuse report that W.W., a 19-month-old boy in care at the Edwards home, had bruises along his spine and arms, two large bumps on his head, and a patch of hair loss on the top of his head. Medical examinations by the Child Protection Team and the child's pediatrician determined the injuries were significant, inflicted and the result of physical abuse. The abuse report was called in by J.W., the divorced father of the child. W.W. lived with his father and his older sister in the home of J.W.'s mother. J.W.'s teenaged nephew also lived in the house. W.W. did not see his biological mother. J.W. worked as a chef, and left W.W. and his older sister at the Edwards home on evenings that he worked. The medical determination of the approximate time of injury indicated the injuries occurred either at the child's residence or the Edwards family day care home. When at his residence, W.W. was in his father's care. J.W. denied inflicting the injuries on his son, and discounted the possibility that anyone else living in his household might have done so. J.W. was certain that his son's injuries were inflicted at the Edwards home. W.W.'s older sister told investigators that "bad boys" at the Edwards home had inflicted the injuries on the boy. J.W. readily consented to the CAT Scan, eye examination, and clotting factor test recommended by the pediatrician. The father expressed concern about the supervision provided by the family day care home. He recalled several times in the past that when he came to pick up his children at night, he could look in the window of the Edwards home and see Mr. Brueckman sleeping. It required lengthy knocking and ringing of the doorbell to finally rouse Mr. Brueckman or anyone else in the home. Wayne Brueckman and Marcia Edwards were interviewed by the Protective Investigator. Both denied any inappropriate activity or failure to supervise. However, based upon the medical evidence, and multiple interviews including questioning of the children in attendance at the family day care home, the report was closed as verified. The Protective Investigator concluded that the child was injured by other children at the family day care home. The case determination found that Marcia Edwards and Wayne Brueckman inadequately supervised and neglected W.W. On February 22, 2001, while the W.W. case was being investigated, Ms. Edwards applied to renew her family day care home registration. Based upon the W.W. investigation, the Department issued a denial of registration on May 29, 2002. Ms. Edwards requested a formal administrative hearing to contest the denial of registration. The Department forwarded the matter to the Division of Administrative Hearings, where it was assigned DOAH Case No. 01-2840. A hearing was scheduled for September 19, 2001, in Fort Myers, Florida, before Judge Daniel S. Manry. Counsel for Ms. Edwards requested a continuance due to a scheduling conflict. Judge Manry granted the continuance and rescheduled the hearing for October 19, 2001. On October 12, 2001, the Department filed a motion to relinquish jurisdiction, accompanied by a settlement agreement between the parties. On October 15, 2001, Judge Manry entered an order closing the file in DOAH Case No. 01-2840. The settlement agreement required licensure of the family day care home, which would obligate the family day care home to comply with increased regulatory standards. One such standard prohibits the owner from working out of the home during the hours the family day care is operating. Rule 65C- 20.009(1)(a), Florida Administrative Code. In the settlement agreement, Ms. Edwards affirmatively recognized her on-going obligation to comply with all requirements of the Florida Statutes and Administrative Code applicable to family day care homes. The settlement agreement also provided that the Edwards home would receive a consultation by Child Care of Southwest Florida ("CCSWF"), a private, non-profit regional organization that, among many other services, provides training and technical assistance to home-based child care providers. This consultation would be at the Department's expense. CCSWF's consultant would assess the home's compliance with licensing standards and make suggestions as to implementation of best practices. The Department's experience has been that CCSWF's consultation, technical assistance, and training have proven successful in improving marginal child care providers. On December 17, 2001, Lisa Bledsoe, the infant/toddler coordinator for CCSWF, visited the Edwards home for the required consultation. Ms. Bledsoe rated the home based on the Family Day Care Rating Scale ("FDCRS"), an objective tool developed by the National Network for Child Care for the assessment of infant/toddler group care. The FDCRS consists of 32 items which assess the quality of center-based child care for children up to 30 months of age. This 32-item scale covers six categories: Space and Furnishings for Care and Learning, Basic Care, Language and Reasoning, Learning Activities, Social Development, and Adult Needs. Each item can be ranked from 1 to 7. A ranking of 1 describes care that does not even meet custodial care needs while a ranking of 7 describes excellent, high- quality personalized care. The Edwards family day care home received a cumulative score of 2.375 on the FDCRS. Deficits included a sterile and child-unfriendly interior, lack of interesting and colorful pictures and no pictures at child's eye level, insufficient opportunity for outdoor play, minimum hand washing requirements not met, diapers not checked regularly, failure to conduct regular fire drills, dim lighting, and insufficient activities to encourage language development. Ms. Bledsoe contacted Ms. Edwards to notify her the completed rating would be mailed to her. Ms. Bledsoe offered follow-up visits, technical assistance, and training classes for caregivers. Ms. Edwards rejected the offer of further assistance. While acknowledging that her recommendations were not mandatory, Ms. Bledsoe could recall no other day care provider rejecting additional help from CCSWF, which is provided free of charge. The need for Ms. Edwards to provide supervision at the family day care home and to be present was an important issue in the settlement of DOAH Case No. 01-2840. On October 10, 2001, prior to the signing of the settlement agreement, Ellen Blake, a licensing counselor for the Department, conducted a pre- licensing orientation and review at the Edwards home. Ms. Blake and Ms. Edwards had a lengthy discussion about supervision requirements. Ms. Edwards told Ms. Blake that she would be absent only when taking and picking her children up from school. She and Mr. Brueckman were sharing the care of the children. After obtaining licensure, Ms. Edwards appeared to be providing closer supervision of Mr. Brueckman. Ms. Edwards was present for six of the seven licensing inspections the Department performed between October 10, 2001, through June 18, 2002. However, testimony from Ms. Edwards' own witnesses established Ms. Edwards was readily available in the evenings to do extensive hours of volunteer work. Additionally, she transported her own minor children to after-school and weekend activities and was always available to transport other people's children to and from school and outside activities. Further, Ms. Edwards operated a photography business that often involved out-of-home shoots, including a large annual undertaking at St. Xavier School. Mr. Brueckman was left alone with children when Ms. Edwards was out of the home. Ms. Edwards' witnesses also established that she provides child care 24 hours a day, 7 days per week, which is a service not readily available in the community. The home is consistently well utilized, especially during the expanded hours. Mr. Brueckman was providing evening and night supervision, and slept in the same room as the children under his care. The Edwards have three minor children who often have multiple friends spend the night for sleep-overs. Neither the Edwards children nor their friends were restricted from access to the designated child care room. On June 13, 2002, the Department received an abuse report stating that Wayne Brueckman sexually abused D.S., a two- and a half-year-old boy in care at the Edwards family day care home. On June 20, 2002, during an interview with the Lee County Sheriff's Office, Mr. Brueckman admitted to inappropriately touching the child's penis and having the child touch his penis during diaper changes. Mr. Brueckman has been charged with two counts of felony lewd and lascivious molestation and is awaiting trial. Commission of sexual battery on a two-and-a-half-year- old child is a serious violation of the obligation of a child care provider to supervise a child entrusted to their care and for which they are receiving payment. Molestation of a child creates a great likelihood of actual or potential harm. Mr. Brueckman lived at the Edwards home and received only room and board for the continuous care he provided for the children of paying clients, as well as Ms. Edwards' three minor children and their numerous friends. Mr. Brueckman admitted to having had no dating or sexual relationships with an adult for over ten years. He had no private time and felt overwhelmed by his work situation. On June 20, 2002, the Department cited Ms. Edwards for a deficiency in supervision as she failed to meet the needs of children in her care due to Wayne Brueckman's molestation of D.S. The operator of a family day care home is ultimately responsible for the supervision of the children in care. Rule 65C-20.009(3)(a), Florida Administrative Code. Upon learning of Mr. Brueckman's actions, Ms. Edwards immediately evicted him from her house. To meet the requirement that she have a trained substitute caregiver in the home, Ms. Edwards designated her husband as her substitute in July 2002. As of the date of hearing, Mr. Edwards had not completed the required training. During the nine licensing inspections the Department performed between October 10, 2001 through July 1, 2002, various violations of minimum licensing standards were found, including: inadequate lighting in the playroom; failure to keep up-to-date immunization records; failure to keep on file the required enrollment information; ants on the kitchen table; home, furnishings, toys and equipment not kept clean and in good repair; incomplete first aid supplies; and hazardous materials (alcoholic beverages and protein shake mix) within a child's reach. Ms. Edwards corrected all these violations. The Department never sought to fine Ms. Edwards for any of the cited violations. By notice, dated August 14, 2002, the Department revoked Ms. Edwards' license based on the reasons delineated in the letter including past history, licensing inspections, the arrest of Mr. Brueckman for lewd and lascivious molestation of a child at the family day care home, and the ongoing failure to have a qualified substitute.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking the license of Marcia Edwards to operate a family day care home. DONE AND ENTERED this 5th day of February, 2003, in Tallahassee, Leon County, Florida. 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 5th day of February, 2003.
The Issue The issue for determination is whether Respondent properly denied Petitioner's application for renewal of her family child care home license.
Findings Of Fact Respondent, the Department of Children and Family Services (Department), issued a family child care home license to Vernetta Rossi (Petitioner) on January 15, 2001. The license was effective for a year, and automatically expired one year later. The maximum number of children for which Petitioner was licensed was ten. On or about November 11, 2001, Petitioner submitted an application for renewal of her family child care home license. On December 4, 2001, Donna Richey, an inspector with the Department went to Petitioner's home to conduct a re- licensing inspection. The purpose of the inspection was to determine if Petitioner was complying with the licensing rules and to make a recommendation on Petitioner’s application for renewal. Ms. Richey arrived at Petitioner’s house at about 1:30 p.m. Through a pane glass window, Ms. Richey observed a child sleeping on a mat in the dining room hall area. She also heard a child whimpering. Because Ms. Richey knew that there were children in the house and it was naptime, she knocked softly on the door for a few minutes. After getting no answer, Ms. Richey rang the doorbell twice, but still received no answer. After there was no response to Ms. Richey’s knocking on the door and ringing the doorbell, she walked to the back of Petitioner’s house, thinking that Petitioner may have been out in the back of the house. Finding no one there, Ms. Richey then returned to the front of the house and rang the doorbell again. When Ms. Richey returned to the front of the house, she observed that the child on a mat in the dining room hall area was still asleep. Upon returning to the front of the house, Ms. Richey tried the front door handle and discovered that it was unlocked. Ms. Richey then entered the house where she observed Petitioner asleep on the couch in the family room. Ms. Richey then called Petitioner, who woke up and appeared startled. Petitioner had dozed off and advised Ms. Richey that the reason she may not have heard the doorbell ring or the knock on the door was that she had a hearing loss and was lying on her “good” ear. Ms. Richey and Petitioner then toured the areas of Petitioner’s house where the five children, in Petitioner's care that day, were down for their naps. At the time of the tour, all five of the children, who were ages three and four, were in their designated napping areas and on their mats. One child was asleep on a mat in the dining room hall area; two children were on separate mats in one bedroom; one child was on a mat in the hallway; and another child was sleeping in the classroom area. During the time Ms. Richey was at Petitioner’s house for the re-licensure inspection, none of the children were crying, all the children were clean, and Petitioner’s house was neat and clean. There was a fence around the children’s playground in Petitioner's backyard. The fence had been approved by the Department as part of the licensure process. Also, there was a lock on the back door of Petitioner's house that was placed at a height that was not within the children's reach. There was a canal behind Petitioner’s house, which was about 60 yards from the house. In addition there was a five- foot high chain link fence that extended across the back of Petitioner’s property that served as a barrier between Petitioner’s yard and the canal. The fence provided a barrier that made it impossible for the children to easily access the canal. However, the Department determined that the canal was a potential hazard for the children in Petitioner’s care, when she was asleep and the front door of the house was unlocked. There was a main road within the subdivision in which Petitioner's house was located that was about 100 yards from her house. The Department was concerned that because Petitioner’s front door was unlocked and Petitioner had dozed off, the main road could have been a possible hazard to the pre-school children. During the approximately ten minutes that Petitioner was asleep, the children in her care were not being supervised. The Department requires that individuals licensed to provide child care supervise the children in their care. Following the Department’s re-licensing inspection on December 4, 2001, a report of neglect was made and an investigation was conducted. The results of that investigation and the findings and conclusions thereof are summarized in Abuse Report 2001-194692 (abuse report), which was completed on or about December 21, 2001. The abuse report found that on December 4, 2001, Petitioner fell asleep for a few minutes after she had put the five children in her care down for their afternoon nap and that during the time Petitioner was asleep, the children were not supervised. With regard to observations of Petitioner's “day care center,” the investigator noted in the abuse report that Petitioner’s home was “very clean and well kept” and “hazard free” and that there were no hazards observed in the home. Based on the findings of the investigator, relative to Petitioner’s falling asleep, the case was “closed with verified findings of neglect due to inadequate supervision with caretaker present.” The abuse report notes that officials closed Petitioner's facility on or about December 5, 2001. In addition to the incident that occurred on December 4, 2001, the abuse report referred to alleged incidents that took place prior to Petitioner’s being licensed in January 2001. These alleged incidents are not relevant or material to this proceeding in that they were not stated in the January 9, 2001, denial letter to Petitioner as the basis for the Department’s decision to deny Petitioner’s application for renewal of her family child care home license.1 The Department’s January 9, 2002, letter denying Petitioner’s application for renewal of her family child care home license stated in relevant part the following: This letter is to advise you that your application to renew your family day care license, dated November 11, 2001, is denied. In accordance with Section 402.310(10)(a), Florida Statutes, the department may deny a license for the violation of any provision of Sections 402.301-402.319, Florida Statutes, or rules adopted thereunder. The decision is based on the fact that abuse report number 2001-194692 indicates you have a verified report of child neglect for inadequate supervision-caretaker present. On December 4, 2001, during a re-licensing inspection, you were found to be asleep while five children ages, 3 years to 4 years, were in your care. This is in violation of Section 65C-20.009(3)(a), Supervision by Staff, Florida Administrative Code. This states[,] “At all times which includes when children are sleeping, the operator shall remain responsible for the supervision of children in care and capable of responding to the emergencies and needs of children. During the daytime hours of operation, children shall have adult supervision which means watching and directing children’s activities, both indoors and outdoors, and responding to each child’s needs.” Additionally, your actions were in violation of Section 402.301, Florida Statutes, which express [sic] the intent of the Florida Legislature to protect the health, safety, and well being of the children of the state and to promote their emotional and intellectual development and care. Petitioner does not dispute that she dozed off a few minutes on December 4, 2001, but testified credibily that this was an isolated incident. This is substantiated in a letter of support from Cynthia Ray, a former employee of Petitioner who worked at the center. Ms. Ray also served as a substitute for Petitioner and was listed on Petitioner's family child care home license as such. The letter from Ms. Cheryl Ray states that Petitioner has a high energy level, seldom sits down for any length of time, and is always "preparing, cleaning, organizing and doing book work." According to Ms. Ray's letter, it "was out of character for [Petitioner] to fall asleep" while the children were napping or at the center. With regard to the front door being unlocked, Petitioner explained that over the years, the policy or practice of the Department has changed. Petitioner was aware that at one time, the Department required that the door of a child care facility be unlocked so that parents could come in unannounced. Apparently, the Department’s current policy or procedures require that the doors of a child care facility be locked. In light of the policy, Petitioner stated that she would ensure that the doors of her family child care home would be locked. Petitioner has a combined 30 years of experience as a teacher and a principal in Montessori schools. At the time she was licensed by the Department, Petitioner used the Montessori method of instruction and had her home set up consistent with this approach. Parents of children who have been cared for by Petitioner expressed satisfaction, trust, and confidence in Petitioner’s ability to care for their children. They also believe that she has had a positive influence on the children's intellectual and emotional well-being. Many of the parents who testified had several years of experience working with Petitioner as the child care provider for their children. The parents believe that the educational program provided to their children while they were in Petitioner’s care is exceptional. Those parents whose children have left Petitioner’s program to attend kindergarten believe that the educational program provided by Petitioner prepared the children for kindergarten and made the transition to school easier for them. Parents who have had children in Petitioner’s care over the years and up until December 2001, have “dropped in” Petitioner’s home during the day when children were in her care and have never seen anything “amiss” or of concern to them. Parents who have had children in Petitioner's care testified credibly that Petitioner never neglected their children and that they felt their children were safe at Petitioner’s home and not in any danger. Despite the incident that occurred on December 4, 2001, the parents who testified at hearing continue to trust Petitioner to care for their children. The four-year-old daughter of Kevin and Rachel Walsh attended Petitioner's center from the time she was four weeks old, until the center closed in December 2001. The Walshes also have an older son who attended Petitioner's center for four years. During the time Petitioner has been caregiver for their children, the Walshes have been very pleased and satisfied with the care and the education that Petitioner provided to the children. For the past six years, Mrs. Walsh has dropped in unannounced at Petitioner's center and has been satisfied with what she has observed. According the to the Walshes, when in Petitioner's care, their children were in a "clean, safe, happy and learning environment" and learned "not only reading, writing, and math, but also manners and respect." The Walshes indicated that "those qualities make it comfortable for us to relax at our jobs knowing our kids are comfortable and happy." The Walshes live in the same neighborhood as Petitioner and, like Petitioner, they also have a canal behind their house. Because there is a fence which serves as a barrier between Petitioner's yard and the canal, the Walshes do not believe the canal was a hazard for children at Petitioner's center on December 4, 2001, or at any other time. On the day of the re-licensure inspection, the Walsh's daughter was not at the center. Nonetheless, the Walshes expressed utmost confidence in Petitioner to care for their daughter. Since Petitioner's center has been closed, the Walshes have not placed their daughter in another center. It is their desire to return their daughter to the care of Petitioner. Keith and Sharon Delafield's daughter was in the care of Petitioner on the day of the re-licensure inspection and had been in Petitioner's care for about three years. Mr. Delafield testified that during the time that his daughter attended the center, he visited the center, was satisfied with the care his daughter received, and always found the home to be neat and clean. Mr. Delafield believes that his daughter was the child who was whimpering on the day of the re-licensure inspection because she does not like to take naps. However, Mr. Delafield does not believe that she would have gone out of the house without permission of Petitioner. Moreover, despite the events of December 4, 2001, the Delafields trust Petitioner "whole heartedly" with the care of their daughter. According to the Delafields, during the time that their daughter was in the care of Petitioner, there was not a day that she "came home unfed, unclean, untaught, or unloved." Mr. and Mrs. Delafield, are planning to have another child and when they do, it is their desire to place the child with Petitioner. Valerie Senden has had two children attend Petitioner's center even though it is a 30 to 40 minute drive from her house. Ms. Senden's decision to place her children with Petitioner was made after she visited six other centers, all of which she found unsatisfactory. The basis of her dissatisfaction was her observation of the way that children were treated at those centers. During the time that Ms. Senden's children attended Petitioner's center, Ms. Senden made unannounced visits to the center and also spent the day and various parts of the day at the center helping Petitioner. During these visits, Ms. Senden never saw anything that caused her to be concerned about Petitioner's care of the children. Had Ms. Senden seen anything she didn't like or that she believed to be improper, she would have "pulled her children out of the center." Since Petitioner's center was closed, Ms. Senden has not placed her children in another center. Diann Myrick has a son who attended Petitioner's center from about August 2001 until it was closed in December 2001. Ms. Myrick does not believe that her child was ever neglected by Petitioner and is completely satisfied with the care that he has received from her. Moreover, Ms. Myrick testified that every time that she has come to the center to pick up her son, the door is always locked. According to Ms. Myrick, with Petitioner's guidance, her son is learning discipline as well as receiving an education. Ms. Myrick believes that these are things that she has been unable to find in private day care centers. With regard to Petitioner, Ms. Myrick testified that Petitioner is a good caregiver, and that both the children and the parents love Petitioner. Ms. Myrick testified that she wants to put her son in Petitioner's center when and if it is re-opened. Eight letters of support for Petitioner substantiate the testimony at hearing. In these letters, parents whose children have been in the care of Petitioner describe her as "a wonderful teacher and caregiver," an individual who is "honest, competent, and genuine," and a "teacher with compassion, care, and respect for others." Petitioner's center is described as being "not just clean, but immaculate." The parents expressed satisfaction with the education and care that Petitioner provided to their children; indicated that they trust Petitioner to care for their children; and believe it would be a disservice to the children, the parents, and the community to refuse to allow Petitioner to re-open her center.
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 that denies Petitioner's application for renewal of her family child care home license without prejudice to her right to re-apply for such license in the future. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2002.
The Issue At issue in this case is whether Petitioner's application to register as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: This case involves Petitioner's application to operate a registered family child care home. Petitioner had been registered as a family child care home from April 1989 to June 1992 and again from February 1995 to August 1998. The Department received Petitioner's most recent application on September 6, 2000. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care center involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home may care for no more than five preschool children from more than one unrelated family. Subsection 402.302(7), Florida Statutes. The application requires disclosure of "other family/household members." Petitioner's application identified David Barcelona as a household member and stated that his family relationship was "friend (roommate)." During her previous periods of registration, Petitioner had been the subject of numerous complaints to the Department. In May 1989, the Department notified Petitioner that she had been found to be caring for more than five preschool children. Petitioner acknowledged that she was operating above capacity, but assured the Department that the situation would be rectified by June 1, 1989. Nonetheless, complaints regarding the number of children at Petitioner's home persisted through at least June 1991. The Department also received several complaints concerning drug use in Petitioner's home. In September 1995, a complaint alleged that Petitioner and several other adults were seen smoking marijuana in the home. A complaint filed by a parent in February 1996 stated that the parent could smell marijuana on his children when he picked them up from Petitioner's home. A complaint from November 1996 stated that Petitioner was seen smoking marijuana in the presence of the children in her care. In each instance, the Department wrote a letter to Petitioner. The Department's letter of February 26, 1996, is representative and is quoted in relevant part: As a registered family day care home, you are not statutorily required to meet all the child care standards established in [then] Rule 10M-12 or 10M-10 of the Florida Administrative Code. In addition, Chapter 402.302-313 of the Florida Statutes does not provide the department with any statutory authority to regulate complaints of this nature within registered family day care homes. However, in the interest of safety and proper child care, we wanted to bring the complaint to your attention so that you might correct the issues as appropriate. Providing care for any child is very important. It is our hope that you are not engaging in any illegal or inappropriate activities which [sic] operating your child care business. During the Department's investigations of these complaints, Petitioner consistently denied that she used any illegal drugs. On August 10, 1998, the Department received a complaint that an unsupervised child was seen outside in the rain at Petitioner's house. On the same date, the Department received another complaint regarding Petitioner's live-in boyfriend, David Barcellona, and whether his presence rendered her home an unsafe environment for children. The complaint stated that Mr. Barcellona had not undergone background screening and had admitted to hitting one of Petitioner's own children. The complaint also stated that children reported witnessing Petitioner's use of marijuana and crack cocaine in the home. These complaints were resolved when Petitioner ceased providing child care. She sold her house and voluntarily relinquished her registration. A child protective services investigation was also commenced on August 10, 1998, by investigator Daniel McLean. His investigation confirmed that Mr. Barcellona had hit Petitioner's ten-year-old son "upside the head with an open hand" because the boy had called him a "faggot." Petitioner had given Mr. Barcellona permission to physically discipline her children. The children expressed a fear of living in the home with Mr. Barcellona. No observable injuries were found on either Petitioner's son or her eight-year-old daughter. Mr. McLean testified that Petitioner told him at least twice that she had smoked marijuana for 15 years. Mr. McLean attempted several times to obtain a drug screen from Petitioner without success. At length, Mr. McLean informed Petitioner that the Department would begin legal proceedings if Petitioner did not voluntarily surrender custody of her children to their natural father. On August 13, 1998, Petitioner signed the papers giving custody of the children to their natural father. She testified that "I picked the drugs over my children at that time." The evidence admitted at hearing established that, despite her denials, Petitioner had been a long-time user of marijuana. By her own admission, Petitioner was addicted to crack cocaine for a period of at least three months in 1998. Petitioner's sister, Lisa Lucius, estimated Petitioner's crack usage lasted for six months. Mr. McLean testified that Petitioner told him she had been using crack for seven months. At some point in 1999, Petitioner shoplifted a pair of tennis shoes, was arrested, and placed on one year's probation for petit theft. Her probation was conditioned upon her entering a 28-day live-in drug rehabilitation and counseling program at the Ruth Cooper Center in Fort Myers. Petitioner successfully completed this program. Another condition of her probation was her attendance twice weekly at Alcoholics Anonymous meetings. She complied with this condition. Finally, Petitioner's probation was conditioned upon providing random urinalysis drug tests. She complied with this condition, and her tests were all drug free. Petitioner testified that she has been drug free since completing the program at the Ruth Cooper Center. Since the conclusion of her probation in 2000, she has discontinued attendance at Alcoholics Anonymous or Narcotics Anonymous meetings. She testified that she no longer has a drug problem. In the registration application at issue in this proceeding, Petitioner listed David Barcellona as a family/household member. Both Petitioner and Mr. Barcellona were required to undergo Level 2 background screening as set forth in Subsection 435.04(1), Florida Statutes. Petitioner successfully passed the background screening and was so notified by a letter from the Department dated October 24, 2000. The letter informed Petitioner that she had passed the screening, but expressly cautioned: "Receipt of this letter does not automatically qualify you for the employment, specific position or license you may be seeking. That determination will be made [by] either an employer or licensing department." The background screening disclosed potentially disqualifying offenses for David Barcellona. As of November 6, 2000, the Department had sent Mr. Barcellona a letter offering him the opportunity to provide documentation as to the disposition of those offenses, but Mr. Barcellona had not responded. On October 31, 2000, Petitioner phoned Sarah Jarabek of the Department to inquire as to the status of her application. Ms. Jarabek told Petitioner that the Department had concerns about her history of substance abuse and about the presence of Mr. Barcellona in the home. They made an appointment to meet in Ms. Jarabek's office on November 6, 2000. On November 6, 2000, Petitioner and Ms. Lucius met with Ms. Jarabek, Nancy Starr, and Patricia Richardson of the Department. Petitioner provided evidence of the drug abuse treatment she had received while on probation. She also produced documentation that she had completed the required 30- hour Family Child Care Training Course, documentation of her church attendance and completion of a single parenting program at her church, and documentation that she had taken a technical training course for legal secretaries. Ms. Jarabek testified that she accepted all of Petitioner's representations at the meeting regarding her treatment and other matters, but that concerns remained because of Petitioner's history of denying her drug use and because the lonely, pressure-filled business of family day care might prove a poor rehabilitative environment. Ms. Starr testified that she believed more time should pass for Petitioner to demonstrate that she was not subject to a relapse. Petitioner had only been off probation since March 2000, and had yet to demonstrate her stability when her activities were not being constantly monitored. Ms. Starr was also concerned because Petitioner was not currently involved in any organized program to maintain her recovery and because Petitioner had denied using drugs when the complaints were filed in 1996 through 1998. At the November 6 meeting, the Department's representatives also raised the question of Mr. Barcellona's continued presence in the house. Petitioner told them that she had broken up with Mr. Barcellona and ejected him from her house, because she thought he was smoking crack cocaine. She told them that Mr. Barcellona had continued to harass her. He would bang on her door late at night, screaming, "I love you." He would spray his cologne outside her house, to "leave his scent." Petitioner and her children were "terrified" of him, and Petitioner was in the process of obtaining a restraining order against him. Ms. Jarabek believed Petitioner's statement that Mr. Barcellona was no longer living in the house, but remained concerned for the safety of children who would be staying at Petitioner's home, given Mr. Barcellona's erratic behavior. By letter dated November 14, 2000, David Barcellona was notified that he was ineligible for a position subject to background screening. Mr. Barcellona had not responded to the prior agency letter offering him the opportunity to provide documentation regarding the disposition of the disqualifying offenses. As the applicant for registration, Petitioner received a copy of the letter to Mr. Barcellona. By letter dated December 1, 2000, the Department notified Petitioner that her application to operate a registered family child care home had been denied. The letter cited the following as grounds for the denial: the history of at least 13 complaints regarding the operation of the home during Petitioner's previous registration periods, including six complaints related to Petitioner's use of marijuana and/or cocaine in the presence of her own or other people's children; the unreported presence of Mr. Barcellona in the home during Petitioner's previous registration periods; and the lack of sufficient time and evidence to demonstrate that Petitioner was capable of providing a safe and healthy environment for children in her care. Petitioner contended that the Department waived its ability to hold her prior complaints against her now because it repeatedly allowed her to re-register during the relevant years despite those complaints. Ms. Jarabek testified that this apparent anomaly was due to a change in Department policy since Petitioner was last registered. The Department previously took the position that it was required to ignore drug usage in a registered family day care home, because Section 402.313, Florida Statutes, did not expressly provide authority to deny or revoke a registration on that ground. Ms. Jarabek testified that the Department's current interpretation of its statutory authority to supervise the provision of child care permits it to consider drug usage in the home. The December 1 letter took note of the "positive changes" in Petitioner's life, but also noted that these changes were too recent to overcome the concerns about Petitioner's past behavior and future stability.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for registration of her family day care home. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ 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 18th day of May, 2001. COPIES FURNISHED: Richard D. Lakeman, Esquire Law Office of Richard D. Lakeman, P.A. Post Office Box 101580 Cape Coral, Florida 33910 Eugenie G. Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906 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 204 1317 Winewood Boulevard 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.
The Issue Whether Petitioner, the holder of a family day care home registration, has violated Respondent's minimum standards for child care providers by failing to directly supervise an infant in her care on March 22, 2006, and whether her registration should be revoked, pursuant to Section 402.310(1), Florida Statutes.1
Findings Of Fact Petitioner, Jacqueline Bizzell, has been operating a child care facility in her home, at the same location, since 1992. She has been a registered family day care home with Respondent since January 30, 2001. As a part of her application to be a registered family day care home provider, Petitioner sent Respondent verification that she completed the required training for child care providers, which includes knowledge of Respondent's rules and regulations in the area governing child care. On January 26, 2006, Petitioner was informed that her family day care home was again registered for one year, effective January 30, 2006. In the letter, Petitioner was informed that she must maintain her registration in accordance with Section 402.313, Florida Statutes (2005). On March 24, 2006, Respondent received an allegation of neglect or abuse that took place at Petitioner's family day care home on March 22, 2006. Rivers Lewis (Lewis) was a child protective investigator for Respondent on the date of the allegation. He conducted an investigation of the allegation and completed a report. As a part of the investigation, Lewis spoke directly with Petitioner who stated that on March 22, 2006, the child was the only child in her care the day of the incident, and that she left him sleeping on her bed and went into the hallway in front of another room to do laundry or to do something else. Petitioner told Lewis that as soon as she heard the child cry, she stepped back into the room to find that he had fallen from the bed. Petitioner said, first, that the child had fallen off the bed, but later stated that the child had been on the side of the bed and was hanging onto the covers. Lewis submitted his investigative report on April 27, 2006, concluding that the case could be closed with verified indicators of "inadequate supervision" by Petitioner. Shortly after Lewis submitted his report, Ivette Garcia, Child Care Licensing Administrator, received a copy and reviewed it with another worker. She sent Petitioner a letter, dated May 10, 2006, stating that: "The purpose of this letter is to advise you that effective immediately, your family day care home is closed and that your registration is no longer valid." The closure was based upon the incident that occurred on March 22, 2006, wherein the investigative report, submitted by Lewis, confirmed indicators of inadequate supervision. No further investigation or other action was conducted by the child care licensing section in DCF's District 7 before the letter was sent. Although Garcia testified at the hearing that inadequate supervision of a child is a Class I violation, the highest violation, Petitioner was not specifically advised of such classification in the May 10, 2006, letter, nor was a finding made of an immediate serious danger to the health, safety, or welfare of the children who are enrolled in Petitioner's home. Respondent's District 7 Child Care Licensing office did not go to Petitioner's home to inspect or verify the report. It had no further communication with Petitioner after said date. Petitioner was not charged with causing injury to a child under her supervision. Garcia testified that due to the limitations of the registration statute (§ 402.313, Fla. Stat.), Respondent had only one option to deal with a Class I violation: immediately close the home and invalidate the registration. Petitioner's family day care home operated under the name: Hi Granny Day Care. She had only one child in her home on March 22, 2006, the eight-month-old boy, Markel. The child had been fussy and throwing up all day. At about 4:00 p.m., she put the child in the middle of her bed when he finally went to sleep. The bed was by the door. She stepped across the hall to do some chores and while standing at the door, in front of the playroom for about 14 or 15 minutes. When she heard a noise, she immediately stepped back into the room. She admits that she said to the investigator that he fell out of the bed, but that he really did not fall to the floor, but slid off of the bed and was dangling from the bed when she came back into the room; and a blanket broke his fall. She provided a handwritten diagram of her home as it appeared on the date of the incident. Petitioner had been taking care of Sherina Clemons' eight-month-old son, Markel, for over two months when the incident occurred. On March 22, 2006, Petitioner called her between 4:45 p.m. and 5:00 p.m. asking Clemons to not be mad at her. Petitioner told her that the child had been asleep when she placed him on her bed, but that when she walked out of the room, he must have awakened and fallen off of the bed landing on a pallet of covers. According to Latoya Marion, Children's Home Society, the Petitioner's reputation in the community was very good as a child care provider. Latisha Rashawn Bell has known Petitioner for about three years and Petitioner cared for her daughter in 2006. She came to Petitioner's home on March 22, 2006, later in the evening, and knocked on the door. Petitioner came to the door, holding the child, who was whining or crying. Petitioner told her that the child had fallen out of the bed, but had not landed on the floor. Chakera Angelette Faniel is a child care provider, who is not employed by Petitioner. Petitioner cared for Ms. Faniel's daughter for the first three years of her daughter's life, but no longer does. She has known Petitioner for about five years and knows her to be a caring and loving person. Petitioner has a very good reputation in the community as a child care provider. The clear and convincing evidence demonstrates that late in the afternoon of March 22, 2006, Petitioner placed a sleeping eight-month-old boy in the middle of her king-size bed, which was located in her bedroom near the door. Petitioner stepped across the hall and did some chores, while standing in front of the playroom for about 14 or 15 minutes. Although she was only three or four feet from the child, Petitioner could not see the child from where she was standing. When she heard the child cry, she immediately stepped back into the room and found the child lying on some covers on the floor. She picked the child up, who did not appear to be injured. Shortly thereafter, Petitioner contacted the child's parents and reported the incident to them. The child's mother arrived later and took the child home. The evidence is clear and convincing that Petitioner failed to provide direct supervision of the child while he was napping, in the late afternoon, on March 22, 2006. The evidence is clear and convincing that Petitioner is a long-term child care provider, who obviously gives compassionate care to the children in her care. There have been no prior reported incidents of neglect or abuse filed against Petitioner, nor were prior deficiencies listed. Petitioner enjoys a good reputation as a child care provider in her community. Except for the incident on March 22, 2006, no evidence was presented that Petitioner presented an immediate serious danger to the public health, safety, or welfare to the children who are enrolled in her family day care home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Secretary of the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of a single violation of the provisions of Florida Administration Code Rule 65C-22.001(5)(a) and (b) on March 22, 2006; Imposing an administrative fine of $100; and Immediately reinstating Petitioner's family day care home registration for a period of 264 days and permitting Petitioner the opportunity to submit an application for renewal of her family day care home registration at the appropriate time. DONE AND ENTERED this 13th day of April, 2007, in Tallahassee, Leon County, Florida. S 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 13th day of April, 2007.
