The Issue The issue is whether Petitioner should be granted an exemption from employment disqualification pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact Petitioner is forty-three years old. His wife, Margaret Bryant, has applied for a license to operate a family day care home. In March 1987, a law enforcement officer detained Petitioner on suspicion of robbery, placed Petitioner in the backseat of a patrol car, and transported him to the police station. Petitioner was the last person to ride in the patrol car before the law enforcement officer found cocaine in a matchbox in the back seat of the patrol car. Subsequently, Petitioner was arrested and charged with robbery and possession of cocaine. In April 1987, Petitioner pled guilty to aggravated assault pursuant to Section 784.021, Florida Statutes, and possession of cocaine pursuant to Section 893.13, Florida Statutes. He was adjudicated guilty of a third-degree felony for aggravated assault and a second-degree felony for possession of cocaine. The court sentenced Petitioner to 24 days, time served. In January 1992, Petitioner was living with a former girlfriend, Gloria Sanderford. Petitioner and Ms. Sanderford had an argument over some marijuana. During the argument, Petitioner hit the wall then left the residence. When he returned to the residence, Petitioner broke a window in an attempt to gain entry. In February 1992, Petitioner was charged with assault pursuant to Section 784.011, Florida Statutes, and with criminal mischief pursuant to Section 806.13, Florida Statutes. After pleading no contest to these charges, Petitioner was adjudicated guilty of a second-degree misdemeanor on both counts. Petitioner was sentenced to 16 days, time served, and 90 days' probation. The court ordered Petitioner to make restitution to Ms. Sanderford in an amount not to exceed $250. During the hearing, Petitioner admitted that he was convicted of burglary in 1994. Petitioner testified that he was sentenced to three years in jail and was eventually released on parole. The record does not reflect any additional details about this conviction. In September 1996, Petitioner and a former girlfriend, Janet McClendon, fought over some money resulting in a bruised lip and eye for Ms. McClendon and a cut on Petitioner's wrist. Petitioner and Ms. McClendon were using drugs at the time of the incident. In October 1996, Petitioner pled no contest and was adjudicated guilty of a first-degree misdemeanor battery pursuant to Section 784.03, Florida Statutes. The court sentenced Petitioner to 45 days in jail with credit for 18 days, time served. Subsequently, Petitioner returned to jail for violation of parole. On August 8, 1998, Petitioner and Margaret Bryant were not married, but were living together; they had an argument during which Petitioner pushed her. Ms. Bryant called the police resulting in Petitioner's arrest for battery pursuant to Section 784.03(1), Florida Statutes. On August 28, 1998, the court adjudicated Petitioner guilty of a first-degree misdemeanor battery for violating Section 784.03(1), Florida Statutes. Based on this conviction, the court sentenced Petitioner to five months' incarceration with credit for 21 days, time served. The court also ordered Petitioner to complete the Door Program and to participate in family counseling. After Petitioner was released from jail the last time, he began attending church. Petitioner continues to be active in his church, serving as the camera person and participating in the on-going family enrichment and marriage counseling program. Petitioner's pastor considers Petitioner to be a church leader, a loving husband, and devoted stepfather to Ms. Bryant's two children. The pastor's opinion of Petitioner is supported by many of the church members. Petitioner's mother confirms that Petitioner has turned his life around since he stopped abusing drugs and alcohol, and he often helps his mother with household chores. According to Petitioner's mother, Petitioner is a good husband and father to his stepchildren and his goddaughter. Ms. Bryant and Petitioner have been married for almost three years, but they have lived together for several years longer. She testified that Petitioner is a loving husband and stepfather. She asserts that as a couple, they have learned how to deal with the challenges of married life. According to Ms. Bryant, she and Petitioner now have the skills to keep their marriage healthy. Petitioner has a general education diploma and is an electrician by trade. He worked for one electric company for about 14 years; he has been employed as an electrician with his current employer for over two years. Petitioner's employer regards him as a hard worker who is trusted with jobsite responsibilities and recommends Petitioner as a person of character. Petitioner admits that his drug and alcohol abuse caused him problems in the past, and he does not deny his criminal history. However, Petitioner stopped using drugs and alcohol after his last incarceration in August 1998. He now has a strong marriage to Ms. Bryant and a commitment to his church and has accepted the responsibility for helping Ms. Bryant raise her children. Petitioner serves as a mentor for other young children. Petitioner's church and family provide him with a solid support system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner an exemption from disqualification. DONE AND ENTERED this 18th day of April, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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, 2002. COPIES FURNISHED: Anthony Bryant 960 Ontario Street Jacksonville, Florida 32254 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner is eligible to receive a license to operate a group home.
Findings Of Fact In 2006, Petitioner Francoise Antoine ("Petitioner" or "Ms. Antoine") operated an Agency for Persons with Disabilities ("APD") licensed group home for persons with developmental disabilities. It was called "Just Like Home" and was located on Ranch Avenue in Port St. Lucie, Florida. Respondent Agency for Persons with Disabilities ("APD" or "Respondent") is the State agency responsible for licensing group homes for persons with developmental disabilities, pursuant to Section 393.067, Florida Statutes (2009). In December 2006, the Department of Children and Family Services ("DCF") responded to a hotline allegation of abuse of a resident, F. G., at Just Like Home, by sending Child Protective Investigator Kathleen Forsman to the home. She found that F. G., a non-verbal, severely mentally handicapped 15-year-old, had scratches on her arms and face, bite marks, and a swollen hand, and determined that her wounds were inflicted by another resident. As a result, F. G. was moved to another home and Ms. Forsman made verified findings of inadequate supervision by the responsible caretaker, Ms. Antoine, for failing to adequately protect F. G. from injury. Ms. Antoine knew that F. G. was bitten by her roommate. Ms. Antoine noticed marks on F. G. when she was dressing her for school and notified her school. Someone at the school apparently reported the injuries over the abuse hotline. Ms. Antoine submitted the required incident report to APD and, at the suggestion of the DCF investigator, she called the police, and the resident who inflicted injuries on F. G. was arrested. The DCF investigator notified APD of her findings. APD Program Analyst Cordroy Charles saw F. G. and other residents on January 8, 2007, when F. G.'s bite marks with teeth prints and her swollen arm were still visible. Because Ms. Antoine seemed to lack any sense of urgency about getting medical care for F. G., Mr. Charles recommended relocating all of the residents, and the group home on Ranch Avenue was closed. The license expired in January 2008. On or about April 16, 2007, Ms. Antoine received a license from the Agency for Health Care Administration ("AHCA") to operate an adult family care home, called "Abbie's AFCH," located on Del Rio Boulevard in Port St. Lucie. On August 1, 2008, Ms. Antoine took E. B., a resident of the Del Rio home, with her to the Ranch Avenue location, so that she could use a computer. She left him at the home alone while, she said, she had went to get him a hamburger for lunch. E. B. is a vulnerable adult with physical limitations. He walks with a cane. He is also mentally ill and requires psychotropic medications. While he was alone, E. B. telephoned 911, and expressed concern that someone was going to hurt him. When law enforcement personnel and DCF Adult Protective Investigator Martin Markowitz arrived, E. B. was alone and disoriented. There was old food in the refrigerator and evidence that he had fixed macaroni for himself. The temperature in the house was uncomfortably hot, in the mid-to- upper-80s with only a ceiling fan running. Mr. Markowitz found empty bottles of psychotropic prescription drugs with E. B.'s name on them, but was unable to determine if E. B. had been given his medication as prescribed. E. B. was committed pursuant to the Baker Act, and a different subsequent placement for him was recommended by Mr. Markowitz. After being called by a law enforcement person, Ms. Antoine arrived at the house. Mr. Markowitz recalled her saying that she had fed E. B. a hamburger for lunch but left him because he did not want to return to the licensed Del Rio home. Ms. Antoine was arrested for operating, owning, or maintaining an assisted living facility without a license. The charges later were dropped by the State Attorney. Mr. Markowitz made verified findings of inadequate supervision and medical neglect of a vulnerable adult by the responsible caretaker, Ms. Antoine, with regard to her treatment of E. B. Residents were removed but later allowed to return to the Del Rio home. Ms. Antoine's current AHCA-issued license to operate an adult family care home on Del Rio was effective April 16, 2009, and expires April 15, 2011. On October 20, 2008, P. A. M., a developmentally disabled vulnerable adult resident of the group home on Del Rio, called 911 for another resident, O. J., after she told him that she was depressed and thinking of hurting herself. At the time, Ms. Antoine was in the home, in her bedroom watching television. She was not aware of the emergency telephone call until the police arrived, according to P. A. M. Ms. Antoine had responded earlier in the day to O. J.'s complaint of a headache and had taken her to the doctor who prescribed a pain reliever for O. J. Nevertheless, after meeting O. J. in an acute care unit of a mental health facility, Adult Protective Investigator Sonia Dixion made verified findings of medical neglect against Ms. Antoine, the responsible caretaker for O. J. Ms. Antoine submitted an application that was notarized January 26, 2010, to APD for licensure of a residential facility at the same Ranch Avenue address of the previous APD-licensed "Just Like Home." The facility was to be named "Excell Group Care Home." Ms. Antoine did not check whether the application was for an initial license or renewal of a license. She also represented falsely that she had not been identified as a person responsible for the abuse or neglect of a child or vulnerable adult. APD treated the application as an initial application because the license for "Just Like Home" had expired in 2008. The Area Program Administrator said the use of the word "renewal" in the Notice to Ms. Antoine was a scrivener's error.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Persons with Disabilities enter a Final Order denying the application filed by Petitioner for a license to operate a group home in Port St. Lucie, Florida. DONE AND ENTERED this 28th day of July, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2010. COPIES FURNISHED: Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Michael Palecki, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 James DeBeaugrine, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Laurel Hopper, Esquire Department of Children and Family Services 337 North U.S. Highway 1, Third Floor Fort Pierce, Florida 34950 Mario Raynald Theodore, Esquire The Law Office of Mario R. Theodore, P.A. 850 Northwest Federal Highway Stuart, Florida 34994 Francoise Antoine 1342 Southwest Del Rio Boulevard Port St. Lucie, Florida 34953
The Issue The issue is whether Petitioner’s application for licensure as a foster care facility should be approved or denied by Respondent, Agency for Persons with Disabilities.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner is an applicant for licensure of a foster home residential facility. She submitted her application to APD on October 16, 2013. The application requested licensure of the facility in Petitioner’s individual name. However, the proposed name of the facility was Comfortable Living, In Good Hands, to be located at 1309 Jules Court, in Eustis, Florida. Petitioner owns the property located at that address, which serves as her current residence. APD is the state agency which licenses foster care facilities, group home facilities, residential habilitation centers, and comprehensive transitional education programs, pursuant to section 393.067, Florida Statutes.1/ APD is charged with reviewing all applications and ensuring compliance with all requirements for licensure. On page 10 of the application, Petitioner signed the attestation statement and had her signature notarized. The attestation states: Under penalty of perjury, I hereby attest that all information submitted as part of this application is true and accurate to the best of my knowledge and by submitting same I am requesting a license to operate a facility in accordance with chapter 393, F.S. I also attest to such information on behalf of the above-named applicant for licensure or license-renewal. The application indicated that the individual responsible for on-site management and supervision of the facility was Wanda Strong. However, Ms. Strong failed to provide any of the information under the section which requires details on the education and experience of the person identified as the On-Site Manager. The application also included a series of questions concerning the applicant’s qualifications under Section V: Affidavit. Question 2 under this section asked the following: “Have you or anyone identified as a board member or party to ownership ever been identified as responsible for the abuse, neglect, or abandonment of a child, or the abuse, neglect, or exploitation of a vulnerable adult?” Respondent answered “no” to this question. Question 12 under Section V posed the following question: “Have you or anyone identified as a board member or a party to ownership, been convicted of a misdemeanor or felony?” The application also provided that if the response to this question was “yes,” the applicant was to provide “additional information regarding such situation(s)” on the lines provided. Petitioner responded to Question 12 in the affirmative, but failed to provide any details regarding her conviction. During APD’s review of Petitioner’s application, APD took steps to verify the accuracy of the information provided by Petitioner by conducting a search of DCF records on the Florida Safe Families Network. APD’s records search revealed a DCF report which indicated eight verified findings of neglect against Wanda Strong. Specifically, the report stated that on February 5, 2013, Wanda Strong was the caregiver at the Strong Family Day Care responsible for leaving eight children alone at the facility. Brandie Horne is a Child Protective Investigator employed by DCF. Ms. Horne conducted the investigation of the complaint against Strong Family Day Care, prepared the written report, and made the findings of neglect against Ms. Strong. In the course of her investigation, Ms. Horne conducted interviews of the children present at the Strong Family Day Care, and the mother of the children. Ms. Horne also interviewed Wanda Strong and Karlisa Woods, Ms. Strong’s daughter. Ms. Horne determined that on February 5, 2013, the mother of the children dropped them off at Karlisa Woods’ residence. Ms. Woods then left the children alone when she left to go to work. When Petitioner got off work from her night job, she arrived at Ms. Woods’ house at 7:45 a.m. Petitioner then left the younger children alone a second time, while she took the older children to school. When Ms. Horne interviewed Petitioner, Ms. Strong acknowledged that the mother dropped off her children with Ms. Woods at 6:40 a.m., and that Ms. Strong got off work from her job at 7:40 a.m. However, Ms. Strong denied that the children were left alone. When Ms. Horne interviewed Karlisa Woods, Ms. Woods claimed that she did not leave the children alone, but rather had all of the children accompany her in her vehicle, when she drove to pick up Ms. Strong from her work. Ms. Horne determined that Ms. Strong’s statement was inconsistent with Ms. Woods’ statement, conflicted with the statements of the children, and contradicted text messages received from the mother of the children. On March 13, 2013, Ms. Horne met with Petitioner to discuss the inconsistencies in her statements and the other evidence uncovered. At that time, Ms. Horne orally notified Petitioner that she was closing the investigation with verified findings of neglect. Ms. Strong told Ms. Horne that her contract with the Early Learning Coalition had been terminated as a result of this situation. Petitioner was fully informed and aware of the verified findings of neglect made by DCF Child Protective Investigator Horne. In addition, Ms. Horne distinctly recalled giving Petitioner a Notice of Rights and Responsibilities (Notice), which is routinely given to persons who are responsible for verified findings of abuse, neglect, or abandonment of children. The Notice states that a person receiving verified findings may request a copy of the investigative summary within 30 days after closure. The Notice also included the name and telephone number of the investigator. While at hearing Petitioner acknowledged receiving from Ms. Horne a document with the investigator’s name and telephone number, she could not recall what further information was included on the document. At hearing, Petitioner explained why she answered Question 2 in the negative, stating that she did not receive “paperwork” indicating a finding of neglect. However, Petitioner did acknowledge discussing the final report with Brandie Horne, including that the finding of inadequate supervision would identify her as the person responsible. Making reference to her notes made nearly contemporaneously with her conversation with Petitioner, Ms. Horne testified that on March 13, 2013, at 9:15 a.m., she orally informed Ms. Strong of the verified findings contained in her report. Petitioner’s response to Question 2 falsely represented or omitted a material fact in the license application. Petitioner also omitted material facts by failing to provide information pertaining to her education and experience as an onsite manager, and by failing to provide details pertaining to her criminal conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a Final Order denying the application filed by Petitioner for a license to operate a foster care facility. DONE AND ENTERED this 2nd day of July, 2014, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 July, 2014.
The Issue Whether Petitioner's application for a foster care license should be granted.
Findings Of Fact Petitioner, Joan Henry (Ms. Henry), was licensed by Respondent, Department of Health and Rehabilitative Services (HRS), as a foster parent in 1992. She continued to be licensed until sometime in 1994. The foster home was officially closed September 19, 1994. She applied for relicensure as a foster parent, and her application was denied by HRS. During the time relevant to this proceeding, Ms. Henry cared for five foster children, B.W., S.W., S.A.W., T.W., and T.B. Ms. Henry's adult daughter, Jiliane, lived with Ms. Henry during this time. Jiliane took care of the children while Ms. Henry worked during the day. HRS was aware of this arrangement. On May 25, 1994, Ms. Henry signed an Agreement to Provide Substitute Care for Dependent Children for the five children in her care. Ms. Henry agreed to abide by the following provisions of the agreement. 2. We are fully and directly responsible to the department for the care of the child. * * * 6. We will not give the child into the care or physical custody of any other person(s), including the natural parent(s), without the consent of a representative of the department. * * * 11. We will notify the department immediately of any change in our address, employment, living arrangements, family composition, or law enforcement involvement. * * * 15. We will comply with all requirements for a licensed substitute care home as prescribed by the department. In late June, 1994 or early July, 1994, Ms. Henry received a call that her mother's best friend had died in London, England. Ms. Henry went to London. Ms. Henry could not get in touch with an HRS representative and asked Jiliane to notify HRS that she had been called out of the country unexpectedly. Jiliane failed to notify HRS. Ms. Henry was in London for several weeks. On July 5, 1994, HRS received a call that the Ms. Henry's children had been watching pornographic films in the Henry home and that the children were exhibiting inappropriate sexual behavior. A child abuse investigator visited the Henry household and found that Ms. Henry was away in London and that the children had been left in the care of Jiliane. Prior to leaving for London, Ms. Henry was unaware that Jiliane had pornographic films in the house. Ms. Henry did observe B.W. watching television in Jiliane's room. When Ms. Henry would go by the room, B.W. would quickly switch channels. This happened on numerous occasions. Ms. Henry was "very concerned" and "suspicious" about B.W. changing the channels each time Ms. Henry walked by, but she took no action to investigate the cause of B.W.'s behavior. After Ms. Henry returned from London, she learned that Jiliane did have some pornographic films which she kept in her room. B.W. had access to the films and did view them. Rosalyn Jackson is a licensed foster care parent. She was interested in adopting at least one of the children in Ms. Henry's care. She visited the children in Ms. Henry's home and would take the children to her home on weekends. While the children were in her home, she observed that the children used vulgar language. S.A.W. would try to kiss or touch Ms. Jackson's rear when Ms. Jackson would bend over to pick up something. B.W. would go into the bathroom and fondle herself. T.W. and S.A.W. would try to fondle each other. At that time B.W. was nine years old, S.A.W. was four, and T.W. was three. The children were removed from Ms. Henry's home. Two of the children were placed with Ms. Jackson's sister and one of the children was placed with Ms. Jackson. Ms. Jackson described the children as undernourished. T.W.'s hair was unkempt and dirty and looked as if it had not been cut or washed for a long time. When Ms. Jackson's sister had T.W.'s hair cut and washed, it was discovered that T.W.'s scalp was covered with a fungus. T.W.'s ears contained "black gook" which appeared to have been in his ears for quite a while. S.A.W. was wearing shoes that were two sizes too small.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Joan Henry's application for a foster parent license. DONE AND ENTERED this 14th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3042 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted in substance. Paragraph 3: Rejected as not supported by the evidence. Ms. Henry testified that B.W. would switch channels not Jiliane. Paragraphs 4-5: Accepted in substance. Paragraph 6: Accepted in substance as it applies to the child, B.W. Rejected as to the other children because the only evidence presented was hearsay. Paragraphs 7-8: Accepted in substance. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128 Ms. Joan Henry 18601 Northwest 22 Court Miami, Florida 33056 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioners' application for relicensing as a foster home should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this licensing dispute, Petitioners, Leo and Connie Smith (the Smiths), seek to have their foster care license renewed. In a preliminary decision rendered on October 8, 1999, Respondent, Department of Children and Family Services (Department), denied the request on the ground that Petitioners improperly used corporal punishment on a child under their care, and that the Department "cannot [be] assured that [Petitioners] will not lose control again and use excessive corporal punishment." The underlying facts are relatively brief. Petitioners were first issued a therapeutic foster care license in September 1998. Thereafter, and until their application for renewal was denied, they used the license to care for two therapeutic foster children, a type of foster child that has far more severe emotional problems than a regular foster child. On July 25, 1998, or before the license was issued, Connie Smith (Connie) was babysitting a two-year-old child in her home. When the child "messed in its pants" a second time after being previously warned not to do it again, Connie struck the child with a ruler which left bruises on the child's buttocks. The incident was investigated by the Department and culminated in the issuance of an abuse report on October 9, 1998, which is identified as abuse report number 98-084291. Apparently, that report was not contested, for it remains a confirmed report in the abuse registry. Because the Department's background screening on the Smiths was completed in May 1998, or before the abuse incident occurred, the Department was unaware of the matter when it issued the license in September 1998. The abuse report contains an admission by Connie to the mother of the child that "she had lost her temper with the baby" and struck him. At hearing, however, she denied that she "lost control" and maintained instead that the spanking was simply a form of discipline for the child. Even if Connie's version of events is accepted, the fact remains that the child was struck so hard that he suffered bruises on his buttocks. Through accepted testimony presented at hearing, the Department expressed the concern that if Connie lost control supervising a normal two-year-old child, she would have far more difficulty with older children having severe emotional problems, such as therapeutic foster children. This is a legitimate concern, and Petitioners failed to demonstrate that this concern was not well-founded.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioners' request for renewal of their foster care license. DONE AND ENTERED this 21st day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 21st day of November, 2000. COPIES FURNISHED: 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 Leo and Connie Smith 12134 County Road 684 Webster, Florida 33597 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the family day care license of Respondents.
Findings Of Fact Respondent has been registered with the Department as a family home day care provider since September of 2001. A registered family home day care does not have to meet all of the requirements that a licensed day care home must meet. However, the same background screening and training requirements must be met. Registered family day care homes are not inspected as often as licensed homes. Each year, the registered provider must complete a renewal application that, among other things, identifies household members and substitute care-givers. The operator of the home and all household members are required to pass a Level 2 background screening. Additionally, registered family home applicants must pass a 30-hour family day care home training, a five-hour early literacy course, and each year, complete 10 hours of in-service of continuing education. Operators of the registered homes must designate a substitute care provider who is also required to go through the background screening. Ms. Huewitt designated Teresa Clary as her substitute care provider on her 2007, 2008, and 2009 applications. Previous Disciplinary Action On three occasions in the fall of 2008 and on one occasion in February 2009, Respondent was found to be out of compliance with ratio requirements, i.e., caring for more children than allowed. Additionally, in November 2008, the Family Services Counselor from the Department called the home and the phone was answered by one of Ms. Huewitt’s adult daughters. That daughter informed the Family Services Counselor that Ms. Huewitt was not home and would be back shortly. The Department then determined that this violated the substitute care requirement as Teresa Clary was designated as the substitute care provider. As a result, the Department issued an Administrative Complaint on January 12, 2009, regarding two incidents of being out-of-ratio and for violation of “listed substitute requirements.” A $300 fine was imposed and the registration was placed on probationary status in February 2009. In a letter dated August 27, 2009, the Department informed Ms. Huewitt that the Probationary Registration was lifted effective August 9, 2009, because “the Operator has been in compliance with ratio and capacity requirements during periodic monitoring/inspections while on probationary registration.”2/ Facts concerning the Amended Notice of Administrative Action Ms. Huewitt has three adult children: Jennifer Oliver, Stephanie Oliver, and Anthony Oliver. Jennifer Oliver was listed as an “other family/household member” on the 2007, 2008, and 2009 applications. As a result, a background screening was conducted on Jennifer. The background screening revealed a disqualifying offense. Jennifer requested an exemption from disqualification, but was denied. Consequently, Jennifer Oliver was not permitted to be in the home during the operational hours of the day care. On February 2, 2009, Ms. Huewitt entered into a safety plan in which she agreed not to allow her daughter, Jennifer, to supervise the children while in her care, or even to allow Jennifer to be in the residence while children are in her care during business hours. Despite this, on August 11, 2009, at approximately 9:25 a.m., the Family Services Counselor, Miatta Jalaber, went to Ms. Huewitt’s home and saw Jennifer in the home. Jennifer exited the home as Ms. Jalaber did her walk-through. As a result, Ms. Jalaber called her supervisor, who instructed Ms. Jalaber to write another safety plan for Ms. Huewitt. The August 11, 2009, safety plan was hand-written by Ms. Jalaber while at Ms. Huewitt’s home day care and states, “I Alisa Huewitt understand that my daughter, Jennifer Oliver, must not be present in my residence [address] during operating hours 7:30 a.m.-6:00 p.m. M-F while I have children in care.” The safety plan was signed by both Ms. Jalaber and Ms. Huewitt. Ms. Jalaber made subsequent visits to Ms. Huewitt’s home on October 30, 2009, December 29, 2009, January 29, 2010, February 5, 2010, February 19, 2010, and March 30, 2010. No other persons were present and Ms. Huewitt’s home was in ratio during those visits. She did observe Jennifer in the home on April 16, 2010, but the day care was closed that day. Stephanie Oliver is not listed on any of the applications as a person residing in the home, but has been seen at Ms. Huewitt’s during hours when the day care is open. While there was some testimony that both Stephanie and Ms. Huewitt’s son Anthony have some sort of criminal background and that they have been seen at the day care during business hours, the record is insufficient to establish that their criminal records contain disqualifying offenses, or that they actually live in the home. What is clear is that Ms. Huewitt is of the belief that it is not necessary to list persons who do not actually reside in the home, but who frequently visit the home, on her applications under the category “Other Family/Household Members.” There were instances in which Ms. Jalaber went to the day care home and was led to believe that Jennifer Oliver was Stephanie Oliver. Ms. Jalaber only learned that the daughter she saw and spoke to at the home was Jennifer, who was not supposed to be there during working hours, when she attended Jennifer’s exemption from disqualifying fact-finding meeting. While the record is insufficient to clearly support a finding that Ms. Huewitt lied to Ms. Jalaber about her daughter’s identity, she was not forthcoming with clarifying the confusion. In July 2009, the Department received an abuse report that Ms. Huewitt’s grandson, Kory Hill, Jr., sustained a skull fracture in her residence during business hours. Ms. Jalaber went to Ms. Huewitt’s home, not to investigate the abuse report, but because there was concern that Kory Hill, Sr., who reportedly was taking care of Kory Hill, Jr., on the day of the incident, was residing in the home. Kory Hill, Jr., is Jennifer’s son. Ms. Jalaber addressed her concerns with Ms. Huewitt.3/ During this visit, Ms. Jalaber learned that there was a separate structure in back of Ms. Huewitt’s house. Ms. Jalaber describes it as being just three steps in back of the main house. The structure contains a large room, a closet, and a bathroom and will hereinafter be referred to as “the apartment.” Ms. Jalaber observed clothes in the apartment’s closet and throughout the apartment, and sofa cushions on the floor. It appeared to Ms. Jalaber that someone was residing in the apartment. Ms. Huewitt denies that Mr. Hill, Sr., resided in her home. However, Ms. Huewitt acknowledges that her infant grandson, Kory Hill, Jr., was injured while in the care of his father, Kory Hill, Sr., and that the injury took place in the apartment in back of her house. The injury took place during the day while children were in her care in the main part of her house. Jhaismen Collins is a Child Protective Investigator with the Department. She was assigned to investigate the abuse report regarding this incident. Her investigation began July 1, 2009, at the emergency room where Kory Hill, Jr., had been taken. While there, she spoke to Ms. Huewitt and other family members present in the emergency room. She then made several visits to Ms. Huewitt’s home to follow-up, after the baby was discharged from the hospital. During the follow-up visits, Ms. Collins observed Stephanie in the home and observed Kory Hill, Sr., packing his belongings to leave the home. While the evidence is inconclusive as to whether Mr. Hill actually resided in the apartment behind Ms. Huewitt’s home, it is clear that he frequented the home and the apartment behind the home to visit his son. His son, Kory, Jr., and another son, Kentavious, who is also Ms. Huewitt's grandson, are now attending Ms. Huewitt’s day care. Ayuana Hale is a Dependency Case manager for the Department. Her job is to provide needed services to the child and family in the case of a verified finding of abuse, neglect, or abandonment. She was assigned to the case involving Kory Hill, Jr., after the abuse investigation was closed as verified. Ms. Hale testified that Mr. Hill is currently incarcerated. She has knowledge of this because she is obligated to try to offer Mr. Hill services while he is incarcerated. Parents of children who attend Ms. Huewitt’s home day care are extremely complimentary of the care their children receive, and are not concerned with the safety of their children while there.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order placing the license on probation, requiring Respondent to attend further training in the requirements of applicable statutes and rules regarding who must be listed on her applications, requiring those listed to undergo background screening, and requiring successful completion of such training, with no further incidents, prior to approval of Respondent's application for renewal of her registration. DONE AND ENTERED this 24th day of June, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2010
Findings Of Fact The Agency seeks to revoke the Respondents' Adult Family Care Home (AFCH) license pursuant to an Administrative Complaint dated March 24, 1999, because the Respondents are named as confirmed perpetrators of adult neglect in FPSS Abuse Report No. 1998-023542. This report was uncontested and, therefore, upheld pursuant to Chapter 120, Florida Statutes. The Department of Children and Family Services administers the abuse registry pursuant to the authority confirmed in Chapter 415, Florida Statutes, and is a separate and distinct agency of the State of Florida from the Petitioner. The Respondents are the owners and operators of the subject AFCH named the Bucknor Adult and Foster Home and reside therein. The Petitioner sought to suspend the Respondents' AFCH license in 1998 following the incident that formed the basis of FPSS Abuse Report No. 1998-023542. The parties resolved the suspension in DOAH Case No. 98-1947, ACHA No. 7-98-400-AFCH, through an agreement wherein the AFCH closed until the Agency verified that construction activity on the premises of the AFCH no longer presented a danger to residents. The parties did not contemplate that the Respondents would fail to contest their status as confirmed perpetrators of neglect so the agreement does not address the present circumstance. There is no dispute that the Respondents are the persons named as confirmed perpetrators of neglect in FPSS Abuse Report No. 1998-023542. The Respondents have not received an exemption from disqualification in order to operate an AFCH.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered revoking the Respondents' license to operate as an Adult Family Care Home. DONE AND ENTERED this 22nd day of October, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1999. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway, Suite 220 Tampa, Florida 33614 Robert Mike, II, Esquire 1801 Lee Road, Suite 120 Winter Park, Florida 32789 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308
The Issue Should the Petitioner, Nikki Henderson, d/b/a Henderson Family Day Care Home, be granted a license to operate a family day care home pursuant to section 402.313(3), Florida Statutes (2015)1/ because she does not satisfy the screening provisions of sections 402.305(2) and 402.3055?
Findings Of Fact Ms. Henderson is the mother of four children. She has been a good parent, seeing to their education. She volunteers as the minister of music in a church. She has also taken college courses. Ms. Henderson wants to start a family day care center. On September 12, 2014, the Department granted Ms. Henderson an exemption from disqualification from working with children and other vulnerable populations due to a criminal conviction. This means that just over a year before the hearing, the Department determined that Ms. Henderson proved by clear and convincing evidence that she was rehabilitated and should not be disqualified from employment. § 435.07, Fla. Stat. In the exemption process, the Department could consider the person’s history since the disqualifying criminal offense and “any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed.” § 435.07(3)(a) Fla. Stat. A family day care home is an occupied residence, in which child care is regularly provided for payment. The children served under the age of 13 and from at least two unrelated families. § 402.302(8), Fla. Stat. The Department is the licensing authority for family day care homes. It considers an applicant’s criminal history, as well as any reports concerning abuse or neglect maintained in the Department’s statewide database, Florida Safe Families Network (FSFN), formerly known as HomeSafeNet, in licensing decisions. The Department received Ms. Henderson’s completed application to operate a family day care home on June 25, 2015. By letter dated September 2, 2015, and served September 4, 2015, the Department announced its intent to deny the application based upon two verified reports of inadequate supervision of her children and three reports of complaints all closed with “no indicators” or “not substantiated” conclusions. The reports named Ms. Henderson as the caregiver responsible for the children involved. When using either HomeSafeNet or FSN, investigators input information as they collect it. But they do not input all of the information immediately. The information is much more than what the investigators have observed. Most of the information is recitations of statements of others about what the others observed. The FSFN and HomeSafeNet databases contain records of the following reports involving Ms. Henderson: 1999-089863-01 (Ex. C), 2002-136612-01 (Ex. D), 2004-420815-01 (Ex. E), 2005- 323618-01 (Ex. F), and 2012-126218-01 (Ex. G). These are the reports that the Department relies upon to support denying Ms. Henderson a license. The reports set forth activities of the agency’s investigators, stating what they did. What the investigators did was interview people and report what those people said or what they said someone else said. The reports contain very little directly observed by the reporters. The information contained in the reports that the Department relies upon is largely hearsay or hearsay reports of hearsay. The reports consist mostly of summaries of records reviewed by the reporter or summaries of statements by other individuals. They are not reports of information about which the reporter has direct knowledge. The reports do not identify who the investigator obtained the information from. In short all of the statements in Respondent’s Exhibits C through G about anything Ms. Henderson did or did not do are hearsay recitations of statements made to and summarized by the reporters or summaries of documents reviewed. §§ 90.801 & 90.802, Fla. Stat. Hearsay alone cannot support a finding of fact. § 120.57(1)(c), Fla. Stat. The reports also are not competent or persuasive evidence that the assertions in them are accurate. Ms. Henderson disputes the reports. Her live testimony, subject to cross examination, is more persuasive than the words of the reports. The reports do not satisfy the requirements for the business record hearsay exception of section 90.803(6), or the public record exception of section 90.803(8). See, e.g., Lee v. Dep't of HRS, 698 So. 2d 1194, 1200 (Fla. 1997) (investigative report of pregnancy of woman with a disability residing in a state facility not subject to the public record exception). See also, Brooks v. State, 918 So. 2d 181, 193 (Fla. 2005), cert. den., Brooks v. Fla., 547 U.S. 1151, 126 S. Ct. 2294, 164 L. Ed. 2d 820 (2006); M.S. v. Dep't Child. and Fams., 6 So. 3d 102 (Fla. 4th DCA 2009). Application of the hearsay rule is no mere legal technicality. The hearsay rule is one of the oldest and most effective means of ensuring decisions that determine people's lives and fortunes are based on reliable information. Florida's Fifth District Court of Appeal described the importance of the rule as follows: Rules governing the admissibility of hearsay may cause inconvenience and complication in the presentment of evidence[,] but the essence of the hearsay rule is the requirement that testimonial assertions shall be subjected to the test of cross examination. 5 Wigmore on Evidence, § 1362 (Chadbourne Rev. 1974). As stated by Professor Wigmore, the hearsay rule is "that most characteristic rule of the Anglo- American law of evidence -- a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world's methods of procedure." 5 Wigmore on Evidence, at § 1364. Dollar v. State, 685 So. 2d 901, 903 (Fla. 5th DCA 1996). A complaint on July 18, 1999, triggered the investigation resulting in Report 1999-089863-01 (update date November 16, 2000). (Dept. Ex. C). The report summarizes the investigation of an allegation that Ms. Henderson (then Nikki Stanley) “left [her child] Deuteronomy in his carrier sear [sic] on the steps of the alleged Dad’s home,” knocked on the door and drove away. The allegations continue that the adults were inside and that the alleged father’s mother found the child on the steps. Ms. Stanley, who testified and was cross-examined at the hearing, went with Ms. Henderson to leave the child at the father’s home. Ms. Stanley personally placed the child in the hands of an adult at the house. Ms. Stanley and Ms. Henderson also delivered Pampers and milk. Ms. Henderson’s credible and consistent position has always been that she did not leave the child unattended at the house where the child’s father lived. The testimony of Ms. Stanley and Ms. Henderson is consistent with some statements in the report and more credible and persuasive than the allegations recited in the report. The Department closed the investigation with verified findings of inadequate supervision and no indicators of physical injury. The Department did not provide Ms. Henderson an opportunity for a hearing to contest the findings. The Department filed a dependency petition against Ms. Henderson because of the report. It gave her a case plan, requiring the provision of protective services supervision by the Department. The Department did not remove the child from Ms. Henderson’s care. The Department did not prove by the preponderance of the evidence that Ms. Henderson left Deuteronomy alone on the steps on July 18, 1995. She did not. Report number 2002-136612-01 chronicles the investigation of allegations received on August 23, 2002, described as “Physical Injury,” Substance Exposed Child,” “Inadequate Supervision,” and “Environmental Hazards.” (Dept. Ex. D). The report is a confusing document and contains no information about environmental hazards or a child being exposed to a substance. It is not a credible report of anything involving alleged harmful conduct by Ms. Henderson or conduct endangering a child. In fact although the case started as an investigation of her, it ended with the suspected father of the child identified as the possible perpetrator, not Ms. Henderson. Representative paragraphs are reproduced here. ALLEGATION NARRATIVE: ON A RECENT NIGHT, THE MOTHER BROKE WINDOWS AND CAUSED PROBLEMS AT THE HOME OF THE ALLEGED PATERNAL GRANDMOTHER, BARBARA BROWN, WHERE GEORGE [the child apparently involved] WAS AT THE TIME. THIS OCCURRED ABOUT 3:00 A.M. MOTHER HAD CALLED THE ALLEGED FATHER, ALVIN WALLACE (MS. BROWN’S SON/NO DNA TEST DONE YET TO DETERMINE PATERNITY), EARLIER IN THE EVENING. SHE TOLD HIM SHE WAS GOING TO JAIL, AND SHE TOLD HIM TO GET GEORGE, WHICH HE DID AT 3:00 A.M., MOTHER SHOWED UP WANTING GEORGE. LAW ENFORCEMENT WERE CALLED. THEY ADVISED THE MATERNAL GRANDMOTHER, SHARON STANLEY, TO LET MR WALLCE AND MS. BROWN KEEP GEORGE. MOTHER AND GEORGE LIVE AT ADDRESS A WITH THE MATERNAL GRANDMOTHER, ABOUT WHOM CONCERN WAS EXPRESSED BECAUSE SHE HAS SEIZURES. PATERNAL GRANDMOTHER HAS NOW GOTTEN AN INJUNCTION AGAINST MOTHER. MOTHER DID NOT HAVE TO GO TO JAIL. ITS UNKNOWN WHY SHE THOUGHT SHE HAD TO GO. MOTHER’S LIFESTYLE AND BEHAVIOR ARE SAID TO BE ““QUESTIONABLE.”” MS. BROWN AND MR. WALLACE LIVE AT ADDRESS B. 24 HOUR. ALLEGATION NARRATIVE: RIGHT NOW, GEORGE IS AT THE HOME OF THE ALLEGED PATERNAL GRANDMOTHER, BARBARA BROWN, ADDRESS B. NO DNA TEST HAS BEEN DONE. SO IT HAS NOT BEEN DETERMINED TH[A]T MS. BROWN’S SON IS GEORGE’S FATHER. GEORGE SPENT THE WEEKEND AT MS. BROWN’S HOME, AND MS. BROWN NOW REFUSES TO GIVE GEORGE BACK TO THE MATERNAL GRANDMOTHER. ALLEGATION NARRATIVE: MR. WALLACE SHOOK GEORGE TODAY AROUND 7 PM. MR. WALLACE WAS OUTSIDE WITH GEORGE. GEORGE WAS CRYING. MR. WALLACE THREW GEORGE INO THE HAIR [SIC] AND SHOOK HIM. IT IS UNKNOWN IF GEORGE SUFFERED ANY INJURIES AFTER BEING SHOOK. MR. WALLACE HAS A HISTORY OF SELLING AND USING COCAINE AND MARIJUANA. HE WILL SELL THE DRUGS FROM HIS HOME AND ON THE STREETS. IMMEDIATE. INVESTIGATIVE DECISION SUMMARY: BACKGROUND INFORMATI0N: THE FAMILY HAS ONE PRIOR FROM 1999 WHERE PROTECTIVE SERVICES WERE INVOLVED DUE TO VERIFIED INADEQUATE SUPERVISION. ADJUDICATION WAS WITHELD [sic]. THE MOTHER AND HER TWO CHILDREN INVOLVED IN THE PRIOR LIVE WITH THE GRANDPARENTS AND THE NEW BABY IN LAKELAND. PS CLOSED IN 2001. THE MOTHER HAS A CRIMINAL HISTORY THAT INCLUDES A BATTERY CHARGE FROM 2002. CONCERNS OVER THE ALLEGED FATHER ALVIN WALLACE. DUALING [sic] INJUNCTIONS SUBJECT INFORMATION: THE CASE APPEARS TO BE CUSTODY RELATED. THERE WERE CONCERNS OVER THE ALLEGED FATHER ALVIN WALLACE. DUALING [sic] INJUNCTIONS BETWEEN MOM AND PROSPECTIVE FATHER WERE FILED AND BOTH DISPUTED OVER THE CUSTODY OF THE CHILD. JUDGE SMITH GRANTED AN INJUNCTION AGAINST THE ALLEGED FATHER AND GAVE CUSTODY TO THE MOTHER. LATER, THE RESULTS OF THE DNA SCREEN SHOWED THAT MR. WALLACE WAS NOT THE FATHER. HE IS NO LONGER A THREAT AND DOES NOT HAVE CONTACT WITH THE BABY. SHAKING OF CHILD ALLEGATION WAS BOGUS. LEGAL CONTACT: JUDGE SMITH OF D/V COURT GAVE CUSTODY TO MOM AND GRANTED INJUNCTION AGAINT MR. WALLACE WHO TURNED OUT NOT TO BE THE FATHER AFTER A DNA TEST. FAMILY AND COMMUNITY SUPPORT: MOM HAS DV INJUNCTION AND FAMILY SUPPORTS. SERVICES AND REFERRALS: I.E NOTIFIED. CASE APPEARS TO HAVE BEEN CUSTODY RELATED. MR. WALLACE WAS LATER PROVED NOT TO BE THE FATHER AND NO LONGER HAS ANY CONTACT OR RIGHTS TO THE CHILD WHO LIVES WITH THE MOTHER, GP’S AND OTHER SIBLINGS. HE IS NO LONGER A POSSIBLE THREAT TO THE CHILD. CLOSE CASE AS BACKLOG. CONVERTED ICSA SAFETY ASSESSMENT 06/15/2006 *ICSA INITIAL OVERALL SAFETY ASSESSMENT* RISK IS LOW. ALLEGED PERP [Mr. Wallace] WAS DETERMINED NOT TO BE THE DAD AND IS NO LONGER HAVING CONTACT WITH CHLD. *ICSA UPDATED OVERALL SAFETY ASSESSMENT* RISK IS LOW: ALLEGED PERP WAS DETERMINED NOT TO BE THE DAD AND IS NO LONGER HAVING CONTACT WITH CHILD. The Department closed the investigation with no indicators for any of the alleged mistreatment. The report did not conclude that Ms. Henderson acted improperly or did not act when she should have. The Department initiated case number 2004-420815-01 on September 29, 2004, in response to an allegation that Ms. Henderson was leaving her four children at home alone at night. (Dept. Ex. E). At the conclusion of the investigation, the Department determined that there were no indicators of inadequate supervision. The summary concluded: “The Mother has made adequate arrangements for the children while she works thus not causing a concern for safety and/or permanency.” On February 8, 2005, the Department received a complaint alleging that Ms. Henderson was leaving the children at home alone and coaching them to tell people that she was home, but asleep. The Department started an investigation resulting in report number 2005-323618-01 (Dept. Ex. F). The Department closed this investigation with verified findings of inadequate supervision. It filed another dependency petition to obtain court-ordered protective services supervision. The court ordered a case plan that included a requirement to complete a parenting program. During this open case, Ms. Henderson demonstrated some lack of responsiveness to the Department’s preferred eight-week in-home parenting program. She took a one-day program at the Polk County Courthouse instead. The court, whose order Ms. Henderson was to comply with, accepted this class as satisfying the parenting program, over the Department’s objection. Basically the Department is second-guessing the court’s ruling and treating Ms. Henderson as if she had not met the court’s requirements when she did. On May 31, 2012, Ms. Henderson reported to the Department that a school intern inappropriately touched the breasts of Ms. Henderson’s 14-year old daughter. This initiated report number 2012-126218-01. (Dept. Ex. G). Ms. Henderson was not the subject of the investigation. The intern was. Ms. Ebrahimi was the child protective investigator supervisor at the time of this report. She has personal knowledge of some of the facts in that report and testified about them. Ms. Henderson was very upset about the incident. She acted vigorously and promptly to protect her daughter. Ms. Henderson immediately picked up her daughter and reported the incident to the Department and the school. She insisted that the school remove her daughter from the intern’s class. She also arranged for her daughter to attend a different school the next year. Only one week was left in the current school year. She obtained a temporary injunction against the intern. Ms. Henderson also sought to obtain a permanent injunction to protect her daughter. Ms. Henderson did everything lawful that a loving protective parent could do for her child. The day after the incident Ms. Henderson spoke to Detective Rose. He told Ms. Henderson that the authorities did not perceive sufficient evidence to take actions to protect her daughter, including obtaining an injunction. Even Ms. Ebrahimi concedes that Ms. Henderson was very cooperative with the Department and protective of her child. Ms. Ebrahimi faults Ms. Henderson for, in Ms. Ebrahimi’s view, not following through on the permanent injunction and failing to return phone calls from the Department’s investigator. Ms. Henderson did not receive calls or messages from the investigator. Ms. Ebrahimi does not have personal knowledge of whether the investigator called Ms. Henderson. Ms. Henderson’s testimony about not receiving calls from the investigator is more credible and persuasive than the cryptic notes in the report. Ms. Henderson’s actions were entirely reasonable and protective of her daughter. A person in authority told her that she could not obtain an injunction. So she took no further actions on that front. Ms. Henderson acted immediately to have the offender removed from contact with her child. She arranged for her child to be transferred to a different school. The Department’s investigative summary itself shows the reasonableness of Ms. Henderson’s actions and the difficult circumstances she faced, including a lack of support from responsible authorities, when her 14-year-old daughter reported an intern fondling her breasts at school. The report says: The child states that the intern touched her breast. She disclosed that she told the teacher who did nothing about it. Stated she also told her mother who made a report to law enforcement. The intern is no longer in the child’s classroom but is still at the school per the mother. CPI to update as more information is received. UPDATE: Risk low. Several statements in the report substantiate Ms. Henderson’s recall of events and buttress the determination that she is more persuasive than the document. It also demonstrates that the alleged calls were for the bureaucratic process of closing the case, not furthering the investigation to protect Ms. Henderson’s daughter. In addition, it is difficult to imagine what additional information the DCF investigator could obtain from Ms. Henderson. She had already told DCF all she knew about the assault. The summary also supports Ms. Henderson’s testimony that a police officer told her the police would not pursue the case. It states: “Other children reportedly also reported witnessing, then recanted to Lakeland Police Detective. Lakeland Police not pursuing further, did not find alleged victim credible.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Children and Families, enter a final order granting the application of Petitioner, Niki Henderson d/b/a Henderson Family Day Care Home, to operate a family day care home. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2016.
