The Issue The issue in this case is whether Petitioner's application for a license to operate a family day care center should be granted.
Findings Of Fact DCF is the state agency responsible for, inter alia, the approval and monitoring of family day care homes. Petitioner Karen G. Flanders ("Flanders") has been working in the child care field for several years. On or about April 21, 2006, Flanders submitted a Family Day Care Home Registration form, which is an application seeking approval to operate a small day care home. As part of the application process, Flanders agreed to allow DCF to conduct a Central Abuse Hotline Record search to determine the existence of any complaints or actions against her. The consent form Flanders signed allowing the search included a provision that the department would see any investigation resulting in "verified indicators." During its processing of the application, DCF determined the existence of an investigative report concerning Flanders. The incident in the report allegedly occurred on September 1, 2005. Flanders was alleged to have grabbed, slapped, and punched a child, C.S., while working as a day care worker for Kids Together day care facility. Flanders was immediately terminated from employment by her employer. The Central Abuse Hotline was contacted immediately. By her own admission, Flanders was the caller. Pursuant to its duty, DCF conducted an investigation the day after the alleged incident. The investigation found there were "some indicators" of excessive corporal punishment. The term "some indicators" advises DCF that some adverse incident has happened, but it could have been a one-time issue that may never happen again. In this case, the primary concern of DCF was that the alleged incident occurred in a child care facility. Flanders had an excessive history of prior reported incidents, which was taken into consideration by the investigators. Based on those findings, the safety of the child victim became a concern. DCF found, however, that Flanders' termination from employment was sufficient to alleviate further concern for the child. Flanders has been involved in child care for many years and considers it her occupation. Her pending application to operate a small child care facility is consistent with her work history. However, she has had an adverse incident resulting in some indicators of abusive behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying the application by Karen Flanders to operate a day care facility. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 September, 2006. COPIES FURNISHED: Karen Flanders 14924 Lady Victoria Boulevard Orlando, Florida 32826 Stacy N. Robinson Pierce, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1114 Orlando, Florida 32801 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are: whether the Griffin Family Day Care Home violated provisions of chapter 402, Florida Statutes (2012),1/ and Florida Administrative Code Chapter 65C-20,2/ and, if so, what penalty should be imposed; and whether the Griffin Family Day Care Home's renewal application for a license to operate a regular family day care center should be approved or denied.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by the Griffin Day Care. It is the Department's responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department inspects each licensed day care center three times a year: two unannounced routine inspections (to ensure compliance with the applicable laws and rules) and one renewal application inspection. In the event of a complaint, additional inspections or investigations are conducted. Wanda Griffin owns and operates the Griffin Day Care, a family day care facility licensed by the Department. The facility is located at 1408 Unitah Avenue, Lakeland, Florida, and was in continuous operation at all times material to the issues herein. The facility has not been the subject of any prior disciplinary actions. Lydia Murphy is a child care licensing specialist for the Department. Ms. Murphy is trained to inspect family day care centers for initial applications, renewal applications, and routine inspections. Ms. Murphy is familiar with the facility, having inspected it between 15 to 18 times over the past five to six years. As a result of a complaint being made, DCF conducted an investigation of the facility. On Friday morning, March 23, 2012, a four-year-old child, S.B., was brought to the facility. Following some outside play time, S.B. and the other children came into the facility and were seated at a table for lunch. While Ms. Griffin was retrieving the pizza from the garage, S.B. got up from the table and left the facility via the front door. Ms. Griffin's granddaughter4/ told Ms. Griffin that S.B. was gone. Ms. Griffin immediately began a search for the child. Ms. Griffin contacted 911 and the child's mother. S.B. was located approximately one-half mile from the facility and was returned. There was no testimony about whether or not S.B. was ever in jeopardy while she was unsupervised. Although S.B.'s mother later told Ms. Griffin that S.B. was known to wander off, Ms. Griffin advised S.B.'s mother that she (Ms. Griffin) would no longer take care of S.B. Ms. Griffin admitted this incident occurred. On Tuesday, March 27, 2012, Ms. Murphy (and another DCF employee) interviewed Ms. Griffin about the Friday incident. During that interview, Ms. Griffin told Ms. Murphy that the lock on the front door was not engaged, as she (Ms. Griffin) had disengaged it to allow her daughter to enter the facility following medical treatment. At hearing, Ms. Griffin testified that the front door lock had been engaged when S.B. left the facility. When confronted that the incident occurred on a Friday and that she had told Ms. Murphy just four days after the incident (on Tuesday) that the door lock was disengaged for her daughter, Ms. Griffin claimed that her daughter did not go for the medical treatment on that Friday. Ms. Griffin's testimony is not credible. Leviticus Griffin is Ms. Griffin's husband. They lived together in Plant City for a time and, in 2001, moved to Lakeland. Ms. Griffin testified that, when she applied for (the child care) licensure, they were not living together, as she was living "on housing," and Mr. Griffin was living elsewhere. On four or five inspection visits when Ms. Murphy saw a white truck in the drive-way, there was a man present on the facility property. Ms. Murphy did not see him inside the facility. Ms. Murphy was told he was the yardman. Ms. Griffin maintained that Mr. Griffin was not the yardman. Ms. Griffin testified that the yardman was "one of my grandbaby's uncles" and that she had forgotten his name. Ms. Griffin maintained that this yardman had been her yardman "since she had moved in." Ms. Griffin's testimony is not credible. At the hearing, Ms. Griffin claimed that, when Ms. Murphy saw Mr. Griffin at the facility, he was there to talk about health issues. On the 2012 renewal application, submitted on May 8, Ms. Griffin did not report that Mr. Griffin was residing in the facility. As she was reviewing the 2012 renewal application, Ms. Murphy saw a copy of Mr. Griffin's driver's license and identified him as the yardman she had seen at the facility. In performing the required renewal application investigation in May 2012, Ms. Murphy "put two and two together" and decided that Mr. Griffin was living in the facility. Ms. Murphy investigated Mr. Griffin. Ms. Murphy determined Mr. Griffin had two disqualifying offenses that would preclude his living at the facility unless or until he received an exemption from those disqualifying offenses. Ms. Murphy called and told Ms. Griffin that she was adding Mr. Griffin's name to the 2012 renewal application as a person living in the facility. Ms. Griffin did not object to Mr. Griffin's name being added to this application and indicated she "was going to add him to the license." Although Ms. Murphy testified she spoke with the landlord, Fred Leslie, about who was living in the facility, that testimony is hearsay and was uncorroborated through other competent evidence or testimony. At some undetermined time, a copy of Ms. Griffin's 2008 rental application5/ (Exhibit 2) was provided to DCF. That rental application, which Ms. Griffin executed on June 2, 2008, does not contain an address on the "Rental Property Address" line, nor is it a rental agreement. The name, "Leviticus Griffin," is on the rental application as an additional occupant of the property; however, there is no evidence that this application was for the facility property. Ms. Griffin maintained that Mr. Griffin was not living at the facility at that time, but that he lived elsewhere. DCF presented a certified copy (Exhibit 5) of the Florida Department of Highway Safety and Motor Vehicles, Intranet Records Information System (IRIS). IRIS documented multiple vehicle transactions and driver license transactions involving Mr. Griffin. IRIS reflects that Mr. Griffin's address, as of the "Issue Date" for this record, March 4, 2008, was that of the facility. Mr. Griffin did not testify in this proceeding. Five of the six DCF applications or renewal applications (Exhibit 3)6/ for licensure submitted by the facility identify no one other than Ms. Griffin as living in the facility. The sixth application, the 2012 renewal application form, reflects Ms. Griffin's name on one line and Mr. Griffin's name on the second line where Ms. Murphy inserted and dated the addition. It is noted that the 2007 DCF "renewal" application is for an address different than the address at issue. Beatriz Blanco is a DCF exemption screening specialist with over six years of experience. Mr. Griffin first came to Ms. Blanco's attention in May 2012. Mr. Griffin submitted a request for an exemption. Ms. Blanco wrote Mr. Griffin asking him to provide information about two disqualifying offenses. In July 2012, Ms. Blanco received a partially-completed application from Mr. Griffin. In late July 2012, a letter seeking additional information was sent to Mr. Griffin at his address of record, 1408 Unitah Avenue, the same as the facility. As of February 6, 2013, Mr. Griffin had not submitted any additional information for further consideration of his exemption request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding the Griffin Family Day Care Home committed the Class I violations, imposing an administrative fine of $1,000.00, and denying its renewal application. DONE AND ENTERED this 28th day of February, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2013.
The Issue The issues in these cases are: whether the Davis Family Day Care Home violated provisions of chapter 402, Florida Statutes,1/ and Florida Administrative Code Chapter 65C-20,2/ and, if so, what penalty should be imposed; whether the Davis Family Day Care Home's renewal application for a license to operate a regular family day care center should be approved or denied; and whether the Davis Family Day Care Home's initial application for a license to operate as a large family child care home should be approved or denied.
Findings Of Fact The Parties The Department is responsible for inspecting, licensing and monitoring child care facilities such as the one operated by the Davis Day Care. It is also the Department's responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Following such inspections, a report is provided to the operator which provides a time frame to correct any outstanding deficiencies. The Department also conducts inspections or investigations of child care facilities in response to complaints it receives. LaShandra Davis (Ms. Davis) owns and operates the Davis Day Care, a family day care facility licensed by the Department. The Davis Day Care was initially licensed in April 2007 and was in continuous operation at all times material to these issues. No testimony was offered that the facility had prior disciplinary actions against it. Ms. Davis is a nurse, has an associate of science (A.S.) degree in nursing from Polk Community College, and is attending college to obtain an A.S. degree in early childhood education. Additionally, Ms. Davis has five sons and one daughter. Their names include (from youngest to oldest): Layla Davis, Steven Davis, Devondrae Davis, Deshawn Williams, Daniel Williams, and Rafael Davis. No testimony was received regarding Ms. Davis using any other name or names from August 3, 2010, through December 2, 2010.5/ On February 23, 2011, Ms. Davis submitted an application to obtain a license to operate a large family day care home at her current location. On March 15, 2011, Ms. Davis submitted her renewal application to retain her license to operate a family day care home at her current location. October 29, 2010, AC 1 (August 3, 2010, Inspection) On August 3, 2010, the Davis Day Care was subjected to an inspection based on a complaint that it was "over-ratio." This over-ratio issue involves the number of children in the care of a family day care operation to the number of adults providing that care. The Department received a complaint that the facility was seeking meal reimbursements for more children than were allowed for the type of child care license it held. Vicki Richmond (Ms. Richmond) testified that she conducted the inspection on August 3, 2010, and cited the facility for being over the licensed capacity ratio by more than two children. Because the facility was over ratio by more than two children, it was a Class I violation. At that August inspection, Ms. Davis explained to Ms. Richmond that she (Ms. Davis) had a license to provide child care for ten children, and she had ten children in her care. Ms. Richmond explained the ratio requirement to Ms. Davis. Based on the age of the children, Ms. Davis was authorized to have a maximum of ten children provided no more than five were preschool age, and, of those five, no more than two were under 12 months of age. At this August inspection, Ms. Davis was over-ratio by two children. Ms. Davis executed and received a copy of the complaint report prepared on August 3, 2010, that discussed the over-ratio limitations. Three other technical violations were brought to Ms. Davis's attention during that inspection, and two of those violations were corrected immediately. Ms. Davis was given a two-week extension to correct the third violation involving an expired fire extinguisher.6/ Additionally, Ms. Richmond testified that Ms. Davis's mother ("Ms. Jones")7/ was visiting the facility while Ms. Richmond was conducting this August inspection. According to Ms. Richmond, Ms. Jones had been previously screened, but did not meet the Department's standards to be in a child care facility. Ms. Jones should not have been present either for a visit or to be preparing lunches as the testimony revealed. Ms. Richmond recommended to Ms. Davis that it was important to check into getting an exemption for Ms. Jones to be at the facility. Ms. Davis later testified that Ms. Jones had cleared up the screening issue, and both had been told Ms. Jones was allowed to be present at the facility. At hearing, Ms. Davis admitted that she was over-ratio on August 3, 2010. Further, she stated that she "just flat out misunderstood" the adult-child ratio requirement issue until Ms. Richmond explained it to her in August 2010. Ms. Brooks and Mr. Giordano testified that they had each individually explained the ratio requirement to Ms. Davis during prior inspections or discussions at the facility. Although there is some discrepancy between Ms. Davis's recollection and the two witnesses on this point, Ms. Davis admitted this violation and was quite candid about her lack of knowledge with respect to it. Credible testimony from both Ms. Richmond and Shelia Nobles (Ms. Nobles) established that having two or more children over-ratio was a Class I violation, which would subject any child care facility to discipline by the Department. When Ms. Davis received the Department's three-page October 29, 2010, AC 1 advising her of the Class I violation (over-ratio by two or more children) and assessing a $500 fine, she was "shocked." Ms. Davis testified that, at the time of the inspection (August 3, 2010), Ms. Richmond had stated the fine might be $50 or maybe more, leading Ms. Davis to believe the fine would not be that high. AC 1 advised Ms. Davis that the over-ratio issue was a Class I violation of section 402.302(7). AC 1 provided one Department address for two reasons, to pay the $500 fine or to request an administrative hearing. There is no language within AC 1 that advised Ms. Davis of an optional payment plan. Ms. Davis testified she was unaware of a payment plan option, and her only option was to appeal the decision, which she did. Ms. Richmond confirmed that the Department would accept payments as long as the total fine amount was paid in full prior to the next renewal. However, that information was not shared with Ms. Davis until the hearing. Department's March 23, 2011, Proposed Denial Application to Operate a Family Day Care Home (AC 2) and Department's April 11, 2011, Proposed Denial Application to Operate a Large Family Day Care Home (AC 3). Both AC 2 and AC 3 set forth five allegations in support of the Department's denial of the renewal application and the large family child care home application. Two alleged abuse allegations from 2007 and 2008 were included in these administrative complaints; however, as previously stated, no testimony or evidence was offered, presented or substantiated at hearing. Thus, any attempt to reference either the 2007 or 2008 allegations as fact is disregarded as unfounded and not supported by credible testimony or evidence. AC 2 and AC 3 rest on three allegations: the alleged abuse of child E.B., the alleged lying during the investigation of the alleged child (E.B.) abuse, and the inspection conducted on August 3, 2010, regarding the facility being over ratio.8/ Natalie Barton (Ms. Barton), E.B.'s mother, testified that she saw marks on E.B.'s bottom at the end of November 2010 (November 30, 2010) that "could only have occurred at the day care." Ms. Barton testified she picked E.B. up from the facility prior to 5:30 p.m. and discovered the marks on E.B.'s bottom during bath time that evening. Both Ms. Barton and Ms. Davis testified that E.B.'s mother sent a picture of the injury to Ms. Davis via her cell phone the evening the injury was first seen. At that point, Ms. Davis told E.B.'s mother that she (Ms. Davis) didn't know what or how the injury occurred and recommended taking the child to E.B.'s doctor. Ms. Davis had no hesitation in making this recommendation to Ms. Barton. Ms. Barton took E.B. to her (E.B.'s) pediatrician the morning after she discovered the injury (December 1, 2010). However, E.B.'s physician indicated he wanted to see the child in two days, as he could not make a determination what, if anything, had caused the injury as there was no bruising. Ms. Barton also testified that she took E.B. back to the Davis Day Care after she was seen by her pediatrician so she could see how E.B. reacted. While at the facility, E.B. was "in her routine," that she (E.B.) walked in and sat on the couch like she did every day. Ms. Barton did not return E.B. to her own pediatrician for further evaluation. Ms. Barton testified E.B. was seen by the child protective team the day after she was seen by the pediatrician (December 2, 2010). On December 2, 2010, after receiving information about the possible physical abuse of a child (E.B.) (documented as being received at 11:08 p.m. on December 1, 2010), Deanna McCain (Investigator McCain) contacted Ms. Barton to obtain additional information. Investigator McCain also spoke with E.B., who said she had been hit by "Ms. Shawna." After observing E.B.'s injuries and obtaining a photograph of E.B.'s buttocks, an appointment was made for E.B. to be seen by a member of the child protection team, i.e., the nurse practitioner. During the afternoon of December 2, 2010, Nurse Practitioner Connie Fleming (Nurse Fleming) performed a medical evaluation of E.B., a then two-year, nine-month old child. During E.B.'s evaluation, Nurse Fleming noticed bruising on E.B.'s buttocks. When Nurse Fleming asked E.B. what happened, E.B. responded "Ms. Shawn spanked me." Nurse Fleming stated the bruising appeared to be consistent with an outline of a hand. Pictures taken during the medical evaluation reflect red areas on E.B.'s buttocks. Based on her nine-plus years of training and experience as a nurse practitioner, Nurse Fleming determined that E.B. had suffered physical abuse; however, she never stated who caused the injury. Nurse Fleming contended that the injuries were indicative of a rapid-force compression injury, typical of a slap with a hand. Later on December 2, 2010, Investigator McCain went to the facility to investigate the alleged abuse report. Upon her arrival at the location, Investigator McCain had to wait for a local law enforcement officer (LEO) before she could enter the facility. While Investigator McCain waited for the LEO to arrive (between 3:30 p.m. and 4:45 p.m.), she spoke with parents who were picking up their children from the facility. Each parent she spoke with had supportive comments about the facility ("great day care provider," their child had "no injuries," had never seen "inappropriate behavior," "no concerns"). Whether all these comments came from one parent or multiple parents is unclear. Investigator McCain did not observe any injuries to any of the children leaving the facility. Ms. Richmond also went to the facility at approximately the same time as Investigator McCain; however, Ms. Richmond could enter the home without a LEO, and she did so. Ms. Richmond made contact with Ms. Davis and explained there was a complaint. Ms. Richmond's task at the time was to obtain information about the number of children Ms. Davis had in the facility. According to the sign in sheet, there were seven children present, plus Ms. Davis's four-year-old son. Ms. Richmond testified that Ms. Davis initially stated there were four children present, but later a sleeping child was found in a crib, and her (then) four-year-old son ran through the home.9/ Although Ms. Richmond asked for the attendance sheets for the previous month (November 2010), Ms. Davis was only able to provide the attendance sheets for December 1 and 2, 2010.10/ According to Ms. Richmond, those two attendance sheets documented that Ms. Davis's facility was again over-ratio for those two days. When Investigator McCain entered the facility with the LEO, she explained the reason for her presence to Ms. Davis. Investigator McCain testified Ms. Davis was asked how many children were present and together they conducted a "walk- through" of the facility. Investigator McCain testified that, at the time of the walk-through, she was told there were four children present, three toddlers and a small child in Ms. Davis's arms. Investigator McCain also testified that, during the walk-through, they found an additional child sleeping in a crib. She further testified that, at some later point, another young child ran through the facility, and Ms. Davis identified him as her son. On December 2, 2010, Investigator McCain questioned Ms. Davis about the alleged physical abuse of E.B. During the investigation discussion, Ms. Davis reported to Investigator McCain that "she [Ms. Davis] had no idea how they [E.B.'s injuries] occurred." Ms. Davis further reported E.B. was "fully potty trained." Ms. Davis reported that the child had a toileting accident the day before and had cleaned herself. Still, later in the investigation discussion, Ms. Davis told Investigator McCain that she (Ms. Davis) had helped clean E.B. after the toileting accident, but only from the front, and she had not observed E.B.'s buttocks. Ms. Davis also shared with the investigator that when Ms. Davis questioned E.B. about the injury, E.B. said her mother (Ms. Barton) did it (the abuse). At hearing, Investigator McCain testified that Ms. Davis was "very far along in" a pregnancy and that Ms. Davis was upset, shocked, and surprised by the presence of the investigators. Investigator McCain also confirmed that DCF's presence tends to raise anxiety levels and that people feel like they are being attacked. Further, Ms. Davis confirmed that she was two weeks from her delivery due date when this investigation started. Thus, under the circumstances, forgetfulness may be perceived by some as lying, when in reality it is simply being overwhelmed by the situation. As part of the investigation, it was Investigator McCain's responsibility to also check for any hazards in the facility and to ensure adequate supervision of the children. Although Ms. Davis initially reported there were no other adults to supervise the children, she later reported that her mother, Ms. Jones, came each day around 10:15 a.m. to make lunch for the children. Ms. Barton confirmed that Ms. Jones was sometimes present in the mornings when Ms. Barton brought E.B. to the facility. Several technical violations were noted during the December 2010 investigation; however, they are not the subject of this hearing. Ms. Davis testified she did not spank E.B. Ms. Davis testified that she did not know how the injury occurred, and the child's hearsay statement that her mother had spanked her is not supported by other testimony. However, the time lapses between when the injury was alleged to have occurred (the "end of November," or November 30, 2010, according to the mother), when the injury was "discovered" (the night of November 30, 2010, according to the mother), when the alleged abuse was reported (December 1, 2010, at 11:08 p.m.), when the pediatrician's examination occurred on December 1, 2010, and when the child protective team became involved (December 2, 2010), create confusion and doubt as to when the injury actually occurred and by whom. Even taking the thought process to try to find that the events happened a day later does not relieve the doubt or confusion, nor is that supported by the Department's documentation. Investigator McCain testified that this investigation was closed with a verified finding of physical injury to E.B. However, simply finding a "verified finding of physical injury to E.B." does not establish who perpetrated that physical injury. No testimony was provided that any other possible explanation for the injury was explained. Further, other than indicating that E.B. had red marks on her bottom, no testimony was provided that indicated the degree of harm to the child. That being said, this not to say that logic has left the building with respect to some harm being caused to the child. There were marks on E.B.'s buttocks. Several current and former parents of children who attend or attended the Davis Day Care testified on Ms. Davis's behalf. Each testified that they did not have any concerns with their child attending Ms. Davis's facility. On March 11, 2011, after receipt of the facility's application for the large family day care home license,11/ the Department conducted an inspection of the facility and found it to be in compliance with all the licensing standard requirements (including those previously cited during the December 2010 inspection that were corrected). Upon completion of its investigation, the Department determined to deny Ms. Davis's renewal application and to deny her application for a large family day care license, based on "numerous complaints to our office alleging physical abuse of children in your care and Class I violations of licensing standards." There was one verified complaint of abuse, not "numerous complaints" as alleged. There was a Class I violation regarding the over-ratio issue; however, that could have been resolved with better communication skills. The misrepresentation could have been avoided. Neither notification includes any indication that the March 11, 2011, inspection was taken into consideration prior to making the denial decision. The Department presented testimony indicating that there had been past complaints regarding Ms. Davis and/or the facility. However, no documented prior complaints or final orders were submitted with respect to any prior actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: With respect to the October 29, 2010, administrative complaint, that a final order be entered by the Department of Children and Families finding that the facility was over-ratio on August 3, 2010, and imposing an administrative fine of $500 with no less than ten months to pay the fine. It is further RECOMMENDED that Ms. Davis be ordered to attend remedial classes on the financial operations and management of a child care facility; With respect to the March 23, 2011, administrative complaint, that a final order be entered by the Department of Children and Families renewing the family day care home license on probation status for six months with periodic inspections to ensure the continued safe operation of the facility; and With respect to the April 11, 2011, administrative complaint, that a final order be entered by the Department of Children and Families finding that the large family child care home application be issued a provisional license for a minimum of six months with periodic inspections to ensure the continued safe operation of the facility, with the ability for an additional six-month provisional period. In the event the large family child care home provisional license is not activated within two months of the issuance of the final order in this matter, a new application shall be required, subject to all the applicable statutory requirements. DONE AND ENTERED this 25th day of October, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2011.
The Issue Whether Petitioner's June 1, 2007, application for registration as a family day care home, pursuant to Section 402.313, Florida Statutes, may be granted.
Findings Of Fact DCF's August 8, 2007, letter denied Petitioner’s June 1, 2007, application to register to operate a family day care home due to a verified abuse report of exploitation by Petitioner of her elderly mother; Petitioner's personal history of mental health issues; and a circuit court’s failure to approve Petitioner as an alternative long-term caretaker of her grandchildren in connection with an abuse or neglect investigation and dependency case brought against the children's mother. Unlike licensed family day care homes and facilities, registered homes are not subject to pre-licensure inspection, periodic or surprise inspection after licensure, or DCF monitoring after children are placed in the home. Therefore, in consideration of applications for registration as a family day care home, DCF is particularly careful to make sure that there is nothing in an applicant’s background that would indicate a potential risk for children left in the applicant’s care.1/ Accordingly, DCF conducts a background check that includes its central hotline computer system as well as criminal background checks, pursuant to Chapter 435, Florida Statutes. Marsha Carpenter conducted the screening of Petitioner's application. Her search turned up two prior cases in which Petitioner had been named as a responsible party in the final decisions. FPSS 2004-012525-01, received by DCF on May 7, 2004, was closed with verified findings of exploitation by Petitioner of an elderly, vulnerable adult, who was Petitioner’s mother. This is the only FPSS report referred-to in the Agency’s denial letter. At hearing, evidence was also received concerning FPSS 2004-405767-01, received by DCF on August 27, 2004. No explanation was offered as to why this report, which returned a verified finding of “inadequate supervision” of her three-year- old granddaughter against Petitioner, was not mentioned in DCF’s denial letter. Even with the testimony of the investigator in FPSS 2004-012525-01 (elderly exploitation), much of that report does not even rise to the level of hearsay consideration permitted by Section 120.57(1)(c), Florida Statutes. Therefore, it cannot be relied upon in its entirety here. The credible evidence presented herein, including numerous admissions by Petitioner, support a finding that Petitioner was successively hospitalized in two separate mental health facilities for two separate short periods between May 4, 2004, and June 10, 2004, and that these two short hospitalizations were a result of the great stress Petitioner had endured in caring for her mother, who had just suffered a stroke, and in caring for her brother, who had suffered from a debilitating illness which ultimately caused his death on May 24, 2004. Petitioner thought she may have been hospitalized three times, instead of two times, and testified without refutation that the hospitalizations occurred because she was unable to care for herself in her great grief. Upon the totality of the competent credible evidence, it is further found that during the period addressed by FPSS 2004-012525-01, Petitioner was operating under a legitimate power of attorney from her mother and was also either a legitimate co-signor on her mother's checking account or legitimate co-payee on her mother's government checks. During this period, Petitioner used a check to access her mother's money so as to pay all, or some, of her own utility bill. In mitigation of this diversion of her mother's funds, Petitioner intended that another check of Petitioner's own would be used to pay all, or some, of her mother's nursing home expenses, thereby making-up the deduction of her mother's money she had used for her own utility payment. However, neither her mother's money nor Petitioner's own check reached Petitioner's mother's nursing home, and Petitioner's mother’s nursing home expenses were not, in fact, paid by Petitioner. While Petitioner attributed her failure to pay the nursing home to loss of money from her own checking account, due to her own check, and/or due to her mother's endorsed government check having been cashed by a third party without Petitioner's authorization, there still remains no evidence that Petitioner ever made good on paying her mother’s expenses at her mother’s nursing home. FPSS No. 2004-405767-01, relates to a later date in 2004, when Petitioner's grandchildren, a boy and a girl, were staying with her. Petitioner admitted that she left the children alone and unsupervised in her yard while she went to answer her phone. Petitioner maintained that she was only away from the yard for five minutes and stated that she, herself, rather than a neighbor, as stated in the FPSS report, had summoned the police. However, Petitioner also admitted that the period of time she left her grandchildren unattended had been sufficient for an older neighborhood boy to solicit oral sex from her three-year-old granddaughter. Based on the evidence as a whole, it is not credible that the grandchildren were left alone for only five minutes, but even so, Petitioner conceded that molestation, or even kidnapping, could have occurred in the period of time the children were left unsupervised, even if that period had been only five minutes. On a subsequent occasion, M.P.'s grandchildren were taken into custody in connection with a DCF abuse/neglect investigation of their mother, Petitioner's daughter. Due to Petitioner’s mental health history, the two prior FPSS reports, and the criminal history of an uncle living with Petitioner at the time, DCF did not recommend to the circuit court that Petitioner be considered for long-term placement of the grandchildren. The circuit court placed the grandchildren with a neighbor and friend of Petitioner instead of with Petitioner. During the extended period of time that Petitioner's grandchildren were fostered by Petitioner’s neighbor and friend, Petitioner paid their room and board and regularly visited them in the foster mother's home. The foster mother is an old friend of Petitioner and a member of her church. She testified to Petitioner's honesty, kindness, and love of her grandchildren. Since 2004, Petitioner has been taking psychotropic medication for her mental health, but she presented no medical evidence about the effects of this medication or whether she is safe to be around children while she is taking it. Petitioner presented credible testimony and supporting evidence that since 2004, she has regularly worked as a Certified Nursing Assistant (CNA) without any reported incidents of neglect, abuse, or exploitation of patients. The credible evidence demonstrated she has been a licensed CNA for 23 years, not the 30 years she testified to.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying registration at this time, while clearly setting out that Petitioner is free to reapply at any time. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 8th day of February, 2008.
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 is whether Respondent should have granted Petitioner a license to operate a family day care home.
Findings Of Fact In January 1992, Petitioner operated a foster home for dependent children. The foster home was licensed by Respondent's predecessor, the Department of Health and Rehabilitative Services (hereinafter referred to as Respondent). In January 1992, Respondent received a report that Petitioner and her husband, Jim Shell, had meted out bizarre and excessive punishments to the children in their foster home. The report also alleged that Petitioner tied the younger foster children into their cribs at night. This report resulted in an investigation by Respondent. In the year prior to the initiation of the investigation, the following children stayed in Petitioner's foster home: H.S. (d.o.b. 4-6-89); S.S. (d.o.b. 10-1-86); T.H. (d.o.b. 5-3-89); S.A.C. (d.o.b. 9-18-88); B.Y. (d.o.b. 11-2-80) and G.Y. (d.o.b. 12-2-82. H.S. and S.S. were sisters. S.A.C., B.Y. and G.Y. were siblings. T.H. was mentally retarded. Petitioner gave B.Y. more household duties in the home than would be expected as chores for a child of her age. These responsibilities included housecleaning, laundry and child care. Additionally, Petitioner often kept B.Y. home from school to do housework. To excuse B.Y.'s absence, Petitioner would write notes to the school, falsely stating that B.Y. had a doctor's note and stayed home sick. B.Y. and G.Y. were forced to do push-ups as punishment for minor infractions. Petitioner's testimony that the children were required to do these push-ups as a joke or game is not persuasive. Mr. Shell spanked G.Y. for mis-reciting spelling words. This occurred once a week. On one occasion, B.Y. observed Mr. Shell hit G.Y. on the buttocks with a two by four. On another occasion, Mr. Shell jerked S.A.C. off a trampoline in the backyard, spanked her and threw her onto the ground. As a result of this rough treatment, S.A.C.'s head struck a tree. Petitioner regularly tied H.S.; S.S.; T.H.; and S.A.C. into their cribs at night because they would get up after being put down for the night. When B.Y. untied the children, Petitioner told her that when the children are tied up, they are supposed to remain that way. There was great strife in the Shell household. Petitioner and her husband often argued. For example, on B.Y's first night in the home, Petitioner hit Mr. Shell on the head with a frying pan. It is contrary to Department policy to physically restrain or punish children in foster care. Foster parents learn this in the training they receive before receiving their foster care licenses. Notwithstanding Petitioner's claim that she is separated from her husband, they continue to live under one roof. The house they live in is on the same property where Petitioner intends to operate a family day care home. The foregoing facts, among others, were set forth in the Respondent's final investigative report, Florida Protective Services System Abuse Report Number 92-007405. On April 22, 1992, the Respondent sent a certified letter to Petitioner informing her that the investigative report had been classified as proposed confirmed, that she had the right to request that Respondent amend or expunge the report, and that any such request would be considered only if received by Respondent within sixty days of her receipt of the April 22, 1992 letter. The letter contained the following language: If you do nothing, your right to appeal the classification of the report will be completely barred. By not choosing [to ask for amendment or expungement], this report will automatically be classified as CONFIRMED. This means that you do not contest the department's right to maintain the report findings as stated, including your identification as a perpetrator. A perpetrator in a confirmed report of abuse, neglect or exploitation may be disqualified from working in certain positions of trust, including working with children, disabled adults or aged persons. (Emphasis supplied). Petitioner signed the acknowledgment of receipt for the April 22, 1992, letter on April 27, 1992. She never requested amendment or expungement of the investigative report. Because neither amendment nor expungement of the report was sought, the confirmed classification became final agency action sixty days after Petitioner's receipt of the letter on April 27, 1992. In other words, the agency action became final on June 26, 1992. No appeal was taken from this action.1 In 1994, the Agency for Health Care Administration granted Petitioner an exemption from disqualification from employment in positions covered by Section 400.512, Florida Statutes. That section discusses the requirement for employment screening, using level 1 standards, for home health agency personnel, persons referred for employment by nurse registries, and persons employed by sitter, companion, or homemaker services registered under Section 400.509, Florida Statutes. The record does not indicate whether the Agency for Health Care Administration conducted an evidentiary hearing before making its decision to grant Petitioner the exemption.
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 denying the application of Petitioner Patricia Shell to operate a registered family day care home. DONE AND ENTERED this 2nd day of November, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998.
The Issue The issue in this case is whether Petitioner, Sabra Portwood, is entitled to register her home as a family day care home under the provisions of Chapters 402 and 435, Florida Statutes.
Findings Of Fact On August 10, 2000, Petitioner was married to Randy Shoaff. She had two children, twins, by him and is currently pregnant with another of his children. Although estranged at present, they remain married. Petitioner is in the preliminary stages of dissolving the marriage and intends to complete the dissolution process. Petitioner and Mr. Shoaff have had a rocky relationship. On October 4, 2000, less than two months into their marriage, Mr. Shoaff struck Petitioner several times in the head from behind. She was pregnant at the time of the attack. The incident was reported to law enforcement. On March 12, 2001, Petitioner swore out a Petition for Injunction for Protection Against Domestic Violence, naming her husband as Respondent. The essential facts to which she swore and testified to at hearing were as follows: On February 23, 2001, at 705 W. Wilcox the Respondent Randolph Shoaff told me that the only reason I was still alive was because I was pregnant and that I have 3 other children. He said that he wanted to shoot me & then kill himself. Because of his actions before I have been afraid of him on 3 or 4 different occasions, and I would just be quiet & not say anything & wait for him to go to work. On Oct. 4th (there should be a police report) there was a dispute between us & he started hitting me in the head repeatedly when I was 3 months pregnant & had only been home for 3 hrs from the doctor because I was bleeding during pregnancy. I am afraid because I asked his coworker if his (Randy's) gun was under the counter & he said it wasn't there. As a direct result of Petitioner's request for a domestic violence injunction, the Third Circuit Court issued a Temporary Injunction. Subsequently, the injunction was conditionally dissolved. However, Mr. Shoaff was ordered to have no personal contact with Sabra Portwood at her home. A third Order was subsequently entered in order to facilitate visitation with his children, allowing non-hostile contact between the parties. Mr. Shoaff does not live with Petitioner. However, Petitioner and Mr. Shoaf are presently married. Therefore, Mr. Shoaf is currently a member of Petitioner's family and is required to undergo background screening for Petitioner's registration. Mr. Shoaff did not pass the background screening because of the injunction based on domestic violence entered against him. No exemption from disqualification was sought. Because of the failed background screening, Petitioner, who was the victim of domestic violence and took steps to protect herself from that violence, was denied registration based on the actions of her estranged husband.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying Petitioner's request to register her home as a family day care home. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 May, 2002. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949 Sabra Portwood 140 Regina Road Perry, Florida 32348 John Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this 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.
