The Issue Whether the Department of Children and Family Services (Department) properly denied the renewal of Clay and Diana Merritt's family foster home license, No. 019917.
Findings Of Fact The Department of Children and Family Services is the administrative agency responsible for the licensing of foster homes under the laws of the State of Florida. The Department is responsible for investigating allegations of child abuse against citizens of the State of Florida. The Respondents, Clay Merritt and Diana Merritt were the holders of a foster care home license which was issued by the Department on January 27, 1997. That license was renewed in 1998 and provisionally renewed in 1999. During the period of time that the Respondents were a legally licensed foster home, three different children resided in their home, Amy C., Bo T. and Joe H. On January 27, 1999, an argument ensued between Respondents and Amy C. over Amy C.'s returning late from a date. During that argument, Amy stated that she would report the Merritts for sexual abuse if they did not relax their restrictions upon her. When the Respondents refused to relax their restrictions, Amy C. requested that she be removed from the home. The Department was called and Amy C. was removed from the foster home, and placed in a facility for run-a-way children in Gainesville, Florida. Very soon thereafter, Amy C. alleged that she had been sexually abused by the Respondent, Clay Merritt, on three occasions, all of which included sexual intercourse. The Respondent, Clay Merritt, denies the allegations in their entirety. Amy C. had been a prior victim of sexual abuse by her father, her brother, and her half brother. Amy C.'s father and her brother were convicted of sexually abusing her, and her father is still incarcerated. Amy C. testified at her father's criminal trial. Because of her prior abuse, Amy C. suffers from a number of mental disorders, to include post-traumatic stress syndrome, dysthymia, and attachment disorder. The child further evidences self-destructive behavior and vindictive behaviors against others. Susan Pierce counseled Amy C. for approximately nine months from early 1998 until the end of January of 1999. During that period of time, she developed a close therapeutic relationship with the child, and believed that the child was comfortable with her as a therapist. During that nine-month time period, the child never made any allegations of sexual abuse against the Respondent, Clay Merritt, although she discussed other instances of abuse with the counselor unrelated to the Respondents. Ms. Pierce felt Amy C. would have revealed abuse by Clay Merritt had such abuse occurred. The child lied on numerous occasions to her counselor and the Respondents. The child became increasingly interested in psychopathic murder, which was indicative of the disorders that were suffered by the child in Pierce's opinion. The child stated that she had been sexually abused by Clay Merritt in July, August, and September of 1997 and had a miscarriage in November or December of 1997. However, her diaries indicate that she had menstrual periods on October 25th and November 14th, 1997, thus precluding the possibility of pregnancy. The child further testified that the miscarriage was one of the most painful things she had ever encountered. The child stated under oath that she had not reported the miscarriage because "she did not want to hurt Diana's feelings." She stated to investigators that she did not report the abuse because she did not want to be taken out of the foster home. Throughout the period of time that Amy C. resided with the Respondents, she was a discipline problem. In June of 1998, Respondent, Diana Merritt, discovered Amy C. at home one afternoon with a boy with whom she had just completed having sexual intercourse. Diana Merritt took Amy C. to medical professionals for pregnancy testing and tests for sexually transmitted diseases. Diana Merritt counseled with Amy C. about the dangers of her conduct, and the Merritts maintained a closer watch upon the child. Amy C. refused to comply with the requests of the Respondents to restrict her sexual activities which led to numerous disagreements and arguments with Amy C. These arguments culminated in the argument of January 27, 1999, which resulted in Amy C.'s removal from the home. Amy C. was asked to take a voice stress test by the Sheriff's department, but she declined. The statements of Amy C. are contradictory with regard to specific facts. She gave two different dates for her alleged miscarriage: June and November 1997. She described severe physical trauma associated with the alleged miscarriage, but did not seek or receive medical assistance. She was subsequently examined and tested for sexually transmitted diseases as the result of an unrelated, consensual sexual relationship, and no findings were made indicating a prior, terminated pregnancy. Amy C.'s diaries are vague and unrevealing, except for the reporting the commencement of a menstrual period in October and in November. This is inconsistent with a reported miscarriage in December 1997. Because of the Amy C.'s prior abuse, resort to physical examination, or her description of details about the encounter is not helpful in resolving the her credibility. The allegations by Amy C. of sexual abuse by Clay Merritt are unsupported by any tangible evidence. Amy C.'s reputation for truth and veracity is not good. Her allegations are not supported by her diaries. Her allegations were made almost one and one-half years after the alleged events, and immediately after a fight with the Merritts. The Department's investigation revealed that the Merritts had spanked one of the other children on occasion in contravention of a Department policy banning corporal punishment. The Merritts did not deny this allegation; however, there was no evidence that these spankings were abusive. The spanking was a violation of agency policy; however, testimony was received that this type of conduct was generally not a basis for revoking a license by itself. The Respondent, Diana Merritt, is a licensed practical nurse who is employed by the Putnam County health Department. She has no prior criminal record, no prior child abuse record, nor has she had any legal difficulties in her life. The Respondent, Clay Merritt, is employed as a paramedic and firefighter. He is certified as a paramedic. He has never been arrested nor had any child abuse allegations filed against him in his entire life. The guardian ad litem for Bo T. testified that Bo T. was suffering as the result of his removal from the Respondents' home. Bo T. was the child who was spanked. His guardian ad litem favored placing the child back in the Merritt's home and care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order renewing the foster home license No. 19917 of the Respondents. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 3rd day of March, 2000. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Richard J. D'Amico, Esquire 619 North Grandview Avenue Daytona Beach, Florida 32118 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether Respondent committed the violations as alleged in the Second Amended Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact The Department of Children and Family Services is the agency charged with the responsibility of licensing child care facilities in the State of Florida. § 402.305, Fla. Stat. Respondent was licensed by the Department to operate a child care facility located in Gainesville, Florida. Joyce Vinson is the owner/director of ECCC, and has been since it opened in 2001. Ms. Vinson operated a home daycare for approximately five years prior to opening ECCC. Inadequate supervision--W.G. left behind1/ The Second Amended Administrative Complaint charged Respondent with inadequate supervision of a child in violation of Florida Administrative Code Rule 65C-22.2011(5). Specifically, the complaint alleges as follows: On July 22, 2010, staff members, F.S. and V.L., left a 7 year old disabled child, W.G., behind on a field trip to Duval Elementary. Staff with another provider found the child-who was unable to speak and identify himself-in a field behind the school. Law enforcement was called and the child was later picked up by his parents. Andi Lybrand is the training and curriculum coordinator for the Early Learning Coalition of Alachua County. Ms. Lybrand visited ECCC to observe curriculum and helped coordinate events. Ms. Lybrand organized an event (a play) that was held at Duval Elementary (Duval), to which children from day care centers were invited. Following the performance, a teacher from another facility brought a boy, W.G., into the cafeteria. The boy was found alone in a grassy area behind the cafeteria. He appeared to be upset. W.G. is a child with a disability. Ms. Lybrand placed a 911 call. While this was happening, the van carrying some of the ECCC children began the trip back to the center. Shortly after the van left Duval Elementary, an employee of ECCC, Felita Sallet, performed a head count, and realized that one of the Center's children, W.G., was not on the van. The van then immediately returned to Duval Elementary. A young woman who was an ECCC volunteer was sent into the building to retrieve W.G. Shortly thereafter, an ECCC employee, Vanessa Latson, appeared and advised that she was there to pick up W.G. However, the law enforcement officer who responded to the 911 call would not release W.G. to the volunteer or to Ms. Latson, but would only release the child to a parent. Ms. Vinson then received a call from the school principal, and returned to the school. W.G.'s mother, who did not testify, was notified of the situation and went to Duval to pick up her child. Ms. Vinson and W.G.'s mother left Duval together with W.G. in the mother's car. W.G.'s mother returned W.G. to ECCC for the rest of the day. Up until such time as ECCC was closed due to the Emergency Suspension Order, W.G. remained enrolled at ECCC. The Department's family services licensing counselor, Neshma Cruz-Gil, was advised by W.G.'s mother that she had no concerns for W.G.'s safety while in the care of ECCC. Alice Engram-Hammed, a child protection investigator, investigated this incident and verified findings of inadequate supervision. Transportation violation Ms. Cruz-Gil went to ECCC on July 22, 2010, to further investigate the inadequate supervision allegation set forth above. While there, she cited ECCC with additional violations, including that of transporting more passengers on the ECCC van then the designed capacity. Specifically, the Second Amended Administrative Complaint alleged that on July 22, 2010, two ECCC employees transported 18 individuals (2 adults and 16 children) in a van with a maximum capacity of 15 passengers. This allegation was based upon a determination made by Ms. Cruz-Gil when she arrived at ECCC following the Duval incident. As a family services counselor, Ms. Cruz-Gil is responsible for inspecting child care facilities and family child care homes. ECCC was one of the child care facilities that she inspected. Ms. Cruz-Gil examined a field trip log and interviewed ECCC staff in making her determination that too many people were on the van. The field trip log lists 15 children's names. As there were two staff members and a volunteer on the trip, Ms. Cruz-Gil concluded that there were 18 persons on a van with only 15 seat belts. However, according to Ms. Vinson, the field trip log was not a list of those riding on the van, but of those who attended the play. Three children were transported by car. This was verified by Ms. Sallet, who was on the van for the Duval fieldtrip, and who is "one hundred percent sure" that all of the children riding in the van were properly restrained and secured with seat belts. Ms. Sallet's testimony in this regard is credible and is accepted as fact. Inadequate supervision- May 17, July 22, and July 30, 2010 The Second Amended Administrative Complaint alleges that on July 30, 2010, the Department's licensing counselor observed W.G. in a classroom alone without adult supervision, using a computer; that the same violation occurred on July 22, 2010 (W.G. alone using a computer in classroom unsupervised); and that on May 17, 2010, O.K. was observed alone and unsupervised in a classroom. On May 17, 2010, Sabrina Roper, a speech language pathologist employed by Fundamental Therapy Solutions, Inc. (FTS), was at ECCC along with a speech assistant from FTS. Ms. Roper described Ms. Vinson as very receptive to FTS coming to ECCC to provide speech therapy to those children attending ECCC who were in need of that service, and as an advocate for the children. Ms. Cruz-Gil made a routine inspection of ECCC while Ms. Roper and the speech assistant were there. Ms. Cruz-Gil observed the speech assistant get up and leave the room, leaving the child who was receiving speech services in the room alone. Ms. Roper observed the speech assistant enter the room where Ms. Roper was working to collect materials to use while providing therapy to the child. Ms. Roper described the time the other therapist was in the room with her as "not long." On July 22, 2010, when arriving at ECCC to investigate the Duval incident, Ms. Cruz-Gil observed W.G. alone in a room working on the computer (the "computer room"). She saw the same student alone working on the computer again on July 30, 2010, resulting in citations for this violation on those two dates. Ms. Vinson, however, maintains that she was supervising W.G. in the computer room, that she got up to answer the door when Ms. Cruz-Gil knocked to enter; that the computer room is five feet away from the front door; and that W.G. was only alone in the computer room during the short time it took for her to open the door for Ms. Cruz-Gil. Ms. Vinson added that she did not have a floater that day. Unauthorized administration of medication The Second Amended Administrative Complaint charged Respondent with the following: On or about late June through early July 2010, without parental consent, Respondent's owner and director, J.V., deliberately administered Ex-Lax to a four-year-old child, J.P., making him sick. . . . On or about March through June 2010, the Respondent's owner and director, J.V., deliberately administered Benadryl to infants. These charges were based on allegations made by two former employees of ECCC, Angela Holmes and Caroline Rossman. Angela Holmes works as a teacher's aide at Alachua Academy Juvenile Detention Center. She was previously employed at ECCC from March 1 to June 4, 2010. Ms. Holmes accused Ms. Vinson of a litany of inappropriate actions including giving babies Benadryl to make them sleep. Ms. Holmes alleged that Ms. Vinson sent her to the store with money to purchase liquid Benadryl; that Ms. Vinson kept the Benadryl in her drawer; that she saw Ms. Vinson gave it to infants in the baby room to make them sleep on at least five occasions; and that no one else was in the room when this happened. Ms. Holmes' recollection as to when this happened during her short tenure with ECCC was uncertain and imprecise. Ms. Holmes did not report this to anyone until about two months after she left employment at ECCC. Another of the many inappropriate actions alleged by Ms. Holmes to have been committed by Ms. Vinson involved the unauthorized administration of Ex-Lax to a child. According to Ms. Holmes, Ms. Vinson sent Carolyn Rossman, another former employee of ECCC, to purchase Ex-Lax; that Ms. Vinson asked Ms. Holmes to give Ex-Lax to the child; that Ms. Holmes refused; and that she observed Ms. Vinson give the child Ex-Lax. Caroline Rossman worked at ECCC for a few months, primarily in the infant room. Ms. Rossman was uncertain as to when her employment started and ended. Ms. Rossman testified that Ms. Vinson gave her money to purchase Ex-Lax at the store, and that afterwards, she witnessed Ms. Vinson give the Ex-Lax to a child, JoP. Ms. Rossman was uncertain as to where in the daycare facility this occurred, but described it as "up front." Ms. Rossman was also uncertain as to when this happened during her employment. Generally, Ms. Rossman's testimony was confused as to the facts, imprecise, and not distinctly remembered. Raellen Hale is the mother of JoP and JaP, who attended ECCC for a few months in 2010. According to Ms. Hale, JoP has been diagnosed with global disability disorder, which affects his motor skills, including his bowel and bladder continence. JoP was four years old during the time he attended ECCC. During the last month JoP attended ECCC (May 2010), JoP complained to his mother that his "bottom" and his stomach were hurting, to a point that Ms. Hale took JoP to the doctor. During this period of time, Ms. Hale recalls that Ms. Vinson would call her "where it seemed like every Friday at exactly 12:00" telling her to pick up JoP because he had diarrhea. According to Ms. Hale, JoP's frequent bouts with diarrhea stopped when he stopped attending ECCC. The attendance records, however, reflect no attendance on two consecutive Fridays in May for Ms. Hale's two children. On the other two Fridays in May, Ms. Hale signed JoP out once, and JoP's uncle or father signed him out the other Friday. The attendance records for May 2010 reflect that on the Fridays in May on which her children attended, they were signed out mid-to- late afternoon. According to Ms. Hale, she was not always able to pick up her children right after being called. The records reflect, however, that she only signed her children out of ECCC one Friday in May. Several employees of ECCC who testified describe ECCC in an entirely different light than these, and other related, alleged events. Frewoini Ghevrghergish (referred to by all as "Ms. Frewoini") is employed by ECCC and has been so employed for 10 years, primarily in the toddler room.2/ In addition to working there for 10 years, all four of her children attended ECCC at various ages. Ms. Frewoini never witnessed Ex-Lax or Benadryl administered by Ms. Vinson or by any other staff member. On the contrary, Ms. Frewoini described a procedure that was followed before a child received medication. That is, a parent was required to sign a medication authorization form containing information as to when and how much of a medicine was to be administered. "If they don't sign, we don't give them." Felita Sallet was employed by ECCC from 2008 until it closed in November 2010. Her daughter, who was one-year old in 2008, attended ECCC during that time. Ms. Sallet never had concerns regarding her daughter's care while at ECCC. Ms. Sallet never saw an employee, including Ms. Vinson, give any medication to any child without proper authorization; never heard Ms. Vinson discuss improperly medicating children with Benadryl or Ex-Lax; and noted that giving a child Ex-Lax was counter-productive since the staff is responsible for changing a child that soiled his or her clothes. Irma Hall is a 23-year retired Alachua County School Board employee, who was a Head Start teacher for the school district. She was a volunteer pre-kindergarten (VPK) teacher at ECCC in 2010. Ms. Hall was never asked by Ms. Vinson to give a child medication, nor did she hear of anyone else being asked to do so. Tameka Williams worked at ECCC from June 2010 until the fall of 2010. She was never asked, nor did Ms. Williams hear Ms. Vinson ask anyone else, to improperly medicate any child at ECCC. Ms. Williams never saw any ECCC employee improperly administer any medication to any child at ECCC. Ms. Elise Stewart was employed at ECCC at various times. However, she was not employed at ECCC in the spring of 2010. During the times she was employed there, she never witnessed any employee of ECCC, including Ms. Vinson, give any child Benadryl or any other medication without authorization from the child's parents. Joyce Vinson described the procedure used at ECCC to administer medication to children. The center has medication forms which must be signed by the parent before medication will be administered to any child. Ms. Vinson denied that she ever asked an employee to go to the store to purchase medication; denied ever giving any child any medication without having written parental authorization, including Ex-Lax or Benadryl; and denied calling Ms. Hale every Friday in May 2010 requesting that she pick up JoP because he soiled his clothes. Improper Discipline of a Child The Second Amended Administrative Complaint charged Respondent with the following: On or about May 2010, the Respondent's owner and director, Joyce Vinson, took a disabled four-year-old child, J.P., outside, and in front of other children in care, removed all of his clothing, and hosed him down after he defecated in his pants. J.P. is not toilet trained due to his disability. * * * During the period May through June 2010, the Respondent's owner and director, Joyce Vinson, directed staff not to change J. P. when he defecated in his pull-ups, and repeatedly shut J. P. alone in a bathroom for extended periods of time. This allegation was based primarily on the testimony of Ms. Holmes, who asserts that in May 2010, Ms. Vinson instructed Ms. Holmes to move the children from the playground around the side of the building so they could not see; then Ms. Vinson and Vanessa Latson took JoP outside to the playground, removed his clothes and washed him off with a garden hose after JoP soiled his clothes. Ms. Holmes claims that she and Ms. Sallet witnessed this incident. Ms. Sallet denies ever seeing Ms. Vinson or any other ECCC employee hose down any child who had soiled his clothes. Ms. Sallet further denies ever observing a child disciplined, punished, or shut in a bathroom for soiling his or her clothes. Ms. Sallet described the process used at ECCC by her and other employees for cleaning up children who had soiled their clothes. This process involved using a basin in the bathroom, putting on sanitary gloves, and using wipes as one would use cleaning a baby. The other ECCC employee and volunteer who testified, Ms. Hall and Ms. Williams, also deny ever observing any child being hosed down, or otherwise purposefully embarrassed or humiliated for soiling his or her clothes, at ECCC. Finally, Ms. Vinson denied hosing JoP down to clean him up after he soiled his clothing; denied shutting JoP in the bathroom, or instructing any employee not to change him, or any other child, if he had soiled his clothes. Ms. Hale, JoP's mother, provided pull-ups to ECCC for her son. She typically picked up JoP around 5:00 in the afternoon. On several occasions, he had dried feces on him. In other instances, his pull-up was soaking wet and the diaper would be "full." Tameka Williams was employed by ECCC from June 2010 until sometime in the fall of 2010. When older children soiled their clothes, she would be sent to find clothes. If extra clothes had not been sent from home, ECCC had extra clothes available. Ms. Williams would often be the person who changed the clothing of the children who had soiled their clothes. First, she would clean them with a rag and body soap, wipe them, and put clean clothes on them. She would then put the soiled clothes in a bag, seal it, and let the parents know there were soiled clothes in the bag. Sometimes the clothes needed to be rinsed. Ms. Williams would rinse the soiled clothes, and hang them up. If they were not dry, she would put them in a plastic bag, tie it up, and send it home to the parents. She never witnessed any children being disciplined, with a hose, locked in a bathroom, or by any other method, for soiling their clothes. This was the same procedure described by Elise Stewart, who was employed by ECCC for six years off-and-on. When a child soiled his clothes, she would take the child to the bathroom, clean him or her, rinse the soiled clothes and place them in a plastic bag to go home to the parents. Out of Ratio/Improper Supervision The Second Amended Administrative Complaint charged Respondent with the following: On September 1, 2010 (5th violation), the Department's licensing counselor observed 18 children, including infants, on the playground being supervised by only one teacher and one volunteer; other staff were inside the facility. On August 10, 2010 (4th violation), the Department's licensing counselor observed 8 infants being supervised by only one teacher. During the period of March through June 2010 (3rd violation), the Respondent's staff repeatedly left the infant room unsupervised after the infants went to sleep, so that staff could supervise children or perform tasks in other parts of the facility. On March 24, 2010 (2nd violation), the Department's licensing counselor observed only two teachers supervising a nature walk with four infants and seven two year olds. The Respondent was previously cited and provided technical assistance for this type of violation on February 9, 2009 (twelve children including infants out in the playground with only two staff members). * * * From March through June 2010, the Respondent's owner and director, Joyce Vinson, routinely directed employees to mix age groups in the facility, on the playground and on trips; and to supervise more children than allowed by statute and rule. On March 24, 2010, Ms. Cruz-Gil went to ECCC to investigate a complaint received by phone made by staff of another facility regarding a nature walk that took place on March 12, 2010. After interviewing the staff person who reported this incident, and ECCC staff, Ms. Cruz-Gil determined that the group of children on the nature walk was comprised of a mixed group of three and four-year-olds on the field trip with four infants. Ms. Cruz-Gil determined that ECCC was out of ratio of required staff to children. The testimony regarding the actual number and composition of children on this field trip was confusing and unclear. But, in any event, she did not personally see the composition of staff to children on the field trip, and the field trip did not involve seven two-year olds, or take place on March 24, 2010, as charged. The allegation that during March through June 2010, Respondent's staff repeatedly left the infant room unsupervised when the infants were asleep, so that staff could supervise other children or perform other tasks, was based largely on allegations from Ms. Holmes and Ms. Rossman. According to Ms. Holmes, she was instructed by Ms. Vinson, on a daily basis, to leave the children she was supervising to clean another part of the facility, or to leave the infants alone in their cribs and supervise other children. According to Ms. Rossman, Ms. Vinson instructed her to leave the infants unattended once they were asleep, and when a baby was not asleep, to take the baby outside to the playground.3/ In the three years that Ms. Sallet worked at ECCC, she was never instructed or told that she could leave sleeping children unattended, and never heard Ms. Vinson tell any other employees to do so. According to Ms. Sallet, when ECCC employees took breaks, even to go to the bathroom, they were relieved by another employee. According to Ms. Sallet, ECCC employed a "floater," who would float from room to room to offer minimal relief for bathroom breaks and the like. Ms. Williams was not be assigned to a particular room, but would float from room to room as necessary. Ms. Williams never observed infants unsupervised, and described Ms. Vinson as being very strict about that. Ms. Hall, while volunteering at ECCC, never saw children left unattended and thought that ECCC was overstaffed. Ms. Vinson denies ever instructing any staff member to leave children unattended. Rather, she instructs them to remain with the children they supervise at all times. Ms. Vinson denies instructing staff to leave children in one classroom so that they can perform other facility business. On August 10, 2010, Ms. Cruz-Gil went to ECCC and observed eight infants in the infant room with only one staff member present. Ms. Vinson, however, maintains that on that day, Department inspectors came to the facility with law enforcement. She was with the one-year-old class, a staff member, Marisol, was with the infants, and Ms. Frewoini was with the two-year- olds. Ms. Vinson opened to the door and was informed that she had to deal with certain allegations immediately or she would be shut down. She instructed Marisol to watch the one-year-old class while she dealt with the inspectors and law enforcement. She did not have a floater working that day. Consequently, Marisol ended up watching a combination of infants and one-year- olds. At that point, Ms. Cruz-Gil observed eight children in the infants' room with one staff person, and cited this as a ratio violation. On September 1, 2010, Ms. Cruz-Gil went to ECCC to hand deliver a disqualifying letter to Ms. Vinson regarding an employee of ECCC. When she arrived, she observed 18 children on the playground, including infants, with only one staff member and one volunteer being present. According to Ms. Cruz-Gil, volunteers cannot be counted when calculating the staff-to-child ratio. Ms. Vinson denies that there were 18 children on the playground. Ms. Vinson was away from the center and received a call from staff that Ms. Cruz-Gil was there stating that the center was out of ratio. Ms. Vinson then returned to the center According to Ms. Vinson, the sign-in sheet for that day reflects that only 15 children were present and three ECCC staff present. As with most encounters between Ms. Vinson and Ms. Cruz-Gil, each describes the other as "screaming" at the other, not cooperative, and confrontational. The professional relationship between Ms. Vinson and Ms. Cruz-Gil is poisoned. In light of this history between them, it would be ill-advised for Ms. Cruz-Gil to be involved in any further compliance issues between the Department and Ms. Vinson. The final allegation under this category is that Ms. Vinson routinely directed employees to mix age groups in the facility, on the playground, and on field trips. Again, these allegations are primarily based on representations made by Ms. Holmes and Ms. Rossman. Ms. Holmes testified that she took children in the van "half the time" she was there (later "clarifying" this to "it was like kind of often"), away from the center for the purpose of maintaining proper ratio; that the van is a 15 passenger and that we "never had the kids in seat belts or car seats." She further testified that Ms. Vinson directed her to mix infants and toddlers "maybe two to three times a week;" and that Ms. Vinson would yell at employees to hurry up, that a DCF inspector might come by and that they already had a case against her. Ms. Rossman testified that three or four times, she and Vanessa would take children in the large stroller to the park. The stroller held six children and the older children would walk. It is not clear from this allegation, however, how old the children were who were in the stroller. Ms. Sallet described going on nature walks using the stroller, but that proper ratio was maintained during those walks. According to Ms. Sallet, the only instance in which Ms. Vinson directed staff to mix age groups is when Early Learning Coalition came to ECCC for some kind of activity in which all of the children participated. At those times, everyone would all gather in the common area, teachers as well and students. Ms. Williams described the nature walks as walk around the property on a little path, with six kids in the "bye-bye buggy." Ms. Williams never heard Ms. Vinson instruct employees to mix different age groups of children together so that ratios were maintained. Ms. Stewart, who worked there for six years, described Ms. Vinson as "adamant" about maintaining ratio. Ms. Vinson denies ever instructing any ECCC staff member to take mixed age groups of children away from ECCC to manipulate staff to child ratio. Personnel Violations The Second Amended Administrative Complaint charged Respondent with the following: During June and/or July 2010 the Respondent paid an 11-year-old-girl child, T.E., (who also attended the facility with her siblings) $10 per week for two or three weeks to watch the infants in the infant room by herself. . . . Respondent's owner and director, Joyce Vinson, has repeatedly allowed her fiancé, Kevin Wright, who has a disqualifying offense and has not been subjected to background screening, to transport children to and from the facility with no other child care personnel present. . . . The facility's director, Joyce Vinson, hired V.L., even though Vinson knew that V.L. was not eligible to work in a child care facility because of her criminal record for child abuse that occurred at another child care facility. . . . Respondent's owner and director, Joyce Vinson, knowingly falsified training records for employees. The failure to complete the training requirements is a continuing Class III violation with regard to each affected employee. T.E. is an 11-year-old female child who attended ECCC in the summer of 2010. T.E. testified that while she attended ECCC, she helped watch the babies some times. T.E.'s testimony regarding whether she was ever alone in the room with the babies without an adult was inconsistent. On one occasion, Ms. Vinson gave her $10, which T.E. assumed was payment for watching the babies. Cassie Tillman is T.E.'s mother and the daughter of Ms. Rossman. All five of her children attended ECCC for a period of months in 2010. She recalled that her daughter received $10 on two occasions, and that her daughter told her it was for watching the babies. Ms. Stewart, who worked at ECCC for six years, has seen Ms. Vinson give children money or other gifts for their birthdays. Ms. Vinson gave Ms. Stewart's grandchildren $5 for their birthdays. Ms. Vinson confirmed that she gave $10 to T.E. for her birthday in the summer of 2010, but denies that it was for watching babies. Kevin Wright is the fiancé of Ms. Vinson and has known her since 2006. He holds a degree from Bethune Cookman University and recently became a contract vendor for the School Board of Alachua County to be a substitute teacher. In 1995, Mr. Wright pled nolo contendere to the charge of possession of cocaine, a third-degree felony. Adjudication of guilt was withheld and Mr. Wright was placed on probation for six months, and was required to participate in the Life Skills Program at the Alachua County Adult Detention Center and to seek gainful employment. On the date of the Duval incident, a parent had driven a child to Duval Elementary to see the play. Mr. Wright rode with the parent. This parent was not properly dressed and requested Mr. Wright to escort the child from her car into the school. He did so. He was not on the van. This is supported by Ms. Sallet's testimony regarding who was on the van the day of the incident. Similarly, Mr. Wright has escorted ECCC children from the van into the public library. Mr. Wright denies that Ms. Vinson has ever asked him to transport children who attend ECCC and that he has never done so. Ms. Vinson denies that she ever asked him to do so.4/ Ms. Vinson hired Vanessa Latson when the daycare center where Ms. Latson worked was closing. Ms. Vinson inquired as to whether or not they would rehire Ms. Latson and was told that they would. Ms. Latson had been subject to background screening prior to her employment at the other daycare center. At the time Ms. Latson came to work for Ms. Vinson, the background screening was required every five years, and Ms. Latson had been screened within that time. However, the requirements have changed and now every new hire must be rescreened. Ms. Vinson became aware that Ms. Latson had a criminal record in her past. Ms. Vinson then inquired about this and, when she learned that this was the case, she fired Ms. Latson. On September 1, 2010, Ms. Cruz-Gil went to ECCC with the letter regarding Ms. Latson's disqualifying offense. However, by that time, Ms. Vinson had learned of it and already fired Ms. Latson. In 2007, Ms. Latson entered a plea of nolo contendere to the offense of cruelty toward a child; abuse without great harm, a third-degree felony. Adjudication of guilt was withheld, and she was placed on two-year's probation. There is no credible evidence that establishes that Ms. Vinson knew about Ms. Latson's criminal record prior to hiring her. The final allegation regarding personnel violations is that Ms. Vinson knowingly falsified training records for employees. This allegation was based primarily on Ms. Holmes's representations. Ms. Holmes alleged that she observed Ms. Vinson take her (Ms. Holmes') training certificates and cut- and-paste the names of other employees; that she observed Ms. Vinson make copies of CPR cards for other individuals who did not attend the CPR class and asked Ms. Holmes to laminate them; and that Ms. Vinson changed an employee's employment start date on-line so there would be more time to complete training. Additionally, Ms. Rossman, in confusing and unclear testimony, asserted that Ms. Vinson asked Ms. Holmes to take a test for her (Ms. Rossman). It is unclear why Ms. Vinson would ask Ms. Holmes to take the test for Ms. Rossman when Ms. Rossman was able to take the test. Ms. Vinson denies falsifying employees' records. Ms. Vinson explained that the person takes the class on-line, then goes to a test center to take the test. Ms. Vinson can then check on-line to see if a person has successfully passed the course, and she can then print the certificate. Regarding the allegation that Ms. Vinson told Ms. Holmes to take a test for Ms. Rossman, Ms. Vinson asserts that it was Ms. Rossman who stated that she (Ms. Rossman) was going to ask Ms. Holmes to take the test for her. According to Ms. Vinson, both Ms. Holmes and Ms. Rossman were supposed to take a test on a Saturday in early June, but did not show up to take the test. When Ms. Rossman came back to work the following Monday, Ms. Vinson informed her she could not work because she had not taken the test. Ms. Vinson asserts that at that point, Ms. Rossman threatened to close her down. Ms. Holmes did not return to work. Several witnesses who had been employees of ECCC prior to its closure denied ever seeing Ms. Vinson do this. As with many of the other allegations made by Ms. Holmes and Ms. Rossman, in order to find these the allegations are true, Ms. Vinson would have done all of these things in front of only these two employees, but never in front of any other employee, regardless of how long they worked for Ms. Vinson.5/ Pamela Buckham is the Regional Safety Program Manager for the Department, and is in charge of child care licensing for the northeast region. Ms. Buckham signed the Second Amended Administrative Complaint. It was primarily Ms. Buckham's decision to seek revocation of ECCC's child care license. Ms. Buckham decided to seek revocation rather than impose lesser sanctions because she believed that the children who attend ECCC are in danger. Ms. Buckham based this conclusion on the numerous class I violations alleged that involved child safety, the seriousness of some of the violations, and that the other violations were repeat violations. Further, Ms. Buckham described dealings with ECCC as being met with "a lack of cooperation."
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 for the length of time the facility has been closed due to the Emergency Suspension Order; imposing fines in the amount of $740; requiring Respondent to attend further training regarding the requirements of section 402.305(4) and Florida Administrative Code Rule 65C-20.001(4); and requiring successful completion of such training prior to reopening the child care facility. DONE AND ENTERED this 25th day of July, 2011, 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 25th day of July, 2011.
The Issue The issues in this case are whether Respondent, a child care facility operating under a probation-status license, violated the terms of probation by committing three Class II Violations, as Petitioner alleges, and if so, whether the license should be suspended or revoked; and, alternatively, whether, if Respondent committed the alleged Class II Violations (or any of them), Petitioner should deny Respondent's application for renewal of license.
Findings Of Fact Respondent Wiz Kidz Learning 2, Inc. ("Wiz Kidz"), holds a probation-status Certificate of License, numbered C11MD1914, which authorizes the company to operate a child care facility in Palmetto Bay, Florida, for six months, from September 2, 2017, through March 1, 2018. The licensee does business under the name Wiz Kidz Learning 2. As the operator of a licensed child care facility, Wiz Kidz falls under the regulatory jurisdiction of Petitioner Department of Children and Families ("DCF"). At the time of the final hearing, Wiz Kidz had been a probation-status licensee for more than six months. DCF had converted Wiz Kidz' license to probation status effective June 29, 2017, after finding Wiz Kidz guilty of violating the staff-to-child ratio rules four times in a two-year period, as charged in an Amended Administrative Complaint dated May 25, 2017, which Wiz Kidz had not contested. The conditions of probation were that Wiz Kidz would pay all outstanding fines, not violate the staff-to-child ratio rules again, not commit any other Class I or Class II Violations while on probation, and submit to biweekly inspections. Wiz Kidz' initial probation-status license had been due to expire on September 1, 2017. Shortly before that date, however, Wiz Kidz had submitted a renewal application, which meant that, by operation of law, the probation-status license would not expire until DCF had finally acted upon Wiz Kidz' application for renewal.2/ Instead of simply allowing Wiz Kidz to operate on the "unexpired" license, however, DCF issued a new probationary license to Wiz Kidz effective from September 2, 2017, to March 1, 2018, which essentially renewed the initial probation-status license for another six-month period of probation.3/ On August 17, 2017, DCF employees Claudia Alvarado Campagnola and Quendra Gomez conducted an inspection of the Wiz Kidz facility between the hours of 9:00 a.m. and 2:00 p.m., during which they observed three alleged incidents of noncompliance with "Class II" (mid-level) licensing standards, namely: (1) storing a toxic substance in a place accessible to children; (2) failing to provide adequate direct supervision; and (3) failing to possess a current attendance record during a fire drill. On September 26, 2017, DCF issued to Wiz Kidz a Notice of Intent to Deny Child Care Facility Licensure, which gave notice that DCF planned to deny Wiz Kidz' pending application for renewal of license because, on August 17, 2017, Wiz Kidz had been "cited for 3 class II violations and 7 class III violations in direct violation of [its] probationary license terms." The "toxic substance" seen on August 17, 2017, was an alcoholic beverage. Upon entering the facility, Ms. Gomez noticed two unopened bottles of champagne at the back of a shelf, behind (and partially obscured by) a large plastic toy and other items. There is no photograph of the shelf in evidence, and the descriptive testimony lacked precision; as near as the undersigned can tell, this shelf was several feet long, about one foot deep, and mounted about five feet high on one of the classroom walls. One detail is not disputed: the shelf was above the heads of even the oldest children in care (between the ages of six and seven years). Thus, even if a child could have seen the bottles, he would not have been able to take possession of them without deliberate effort; because the bottles were well out of reach, the child would have needed to stand on a stepladder or its equivalent (e.g., a suitable chair) to get his hands on them. There is no evidence that a stepladder was available. Ms. Gomez testified that a child could have pulled over a chair and climbed on it to reach the champagne bottles. Perhaps so. On the other hand, while the undersigned can reasonably infer that there were chairs in the classroom, he cannot reasonably infer that any of them would have been fit to enable a child to access the bottles. To establish the element of "accessibility" based on the theory that a chair could be used as a stepladder, DCF needed to prove that a suitable chair was actually there for a child present in the classroom to use. This it failed to do. There is no evidence regarding the dimensions of the available chairs, nor any evidence concerning the heights of the children. The witnesses provided only a rough idea of the height of the shelf; their reasonably consistent accounts constitute clear and convincing evidence of the general fact that the shelf was higher than the kids' heads, but not of the actual measurement. Absent proof of these material facts, Ms. Gomez's testimony regarding the way a child could have gotten hold of the champagne bottles is too speculative to support a finding that these items were, in fact, physically accessible to the children. In addition, there is no evidence suggesting that a child could have dragged a chair over to the shelf and clambered up without attracting the attention of an adult. Given that the shelf was located in the classroom, the undersigned infers that no child reasonably could have pulled this off, unless the adult in the room were asleep at the switch. Finally, it is worth mentioning that if a child were able to stand on a chair and grab a champagne bottle without being caught, he still would not have access to the "toxic substance" in the bottle unless he could somehow pour it out. There is no evidence in the record concerning how one opens a champagne bottle, but common experience teaches the undersigned that a young child (the children in care were less than eight years old) likely would have difficulty twisting out the cork. In any event, DCF failed to prove that any of the children at Wiz Kidz reasonably could have popped the cork on the champagne, and therefore it failed to prove that the champagne was accessible to a child. The other two alleged violations occurred during a fire drill, which the inspectors required Wiz Kidz to conduct, in their presence, during the children's nap time. Three children exited the facility in their bare feet. The area where the children were assembled after evacuating the "burning building" was near a dumpster; some litter and tree branches were on the ground. From these facts, which were not seriously disputed, DCF infers that the children were not adequately supervised. The undersigned rejects this inference, which does not reasonably and logically follow from the basic facts. To begin, there is no rule that requires children always to wear shoes. Thus, that some of the children had removed their footwear before taking a nap is of no concern. When the alarm went off, staff evidently did not make these children pause to put their shoes back on, which would have protected their feet——but delayed their exit. To be sure, it is probably a good practice, generally speaking, to prevent young children from going outside barefoot. Clearly, however, it is best not to let them perish in a fire; in an emergency, getting to safety is the highest priority. Because the purpose of a fire drill is to simulate an actual emergency, the fact of the barefoot children prompts undersigned to infer, not that staff failed to provide adequate supervision, but that staff facilitated the speediest escape under the circumstances. During the fire drill, one of the teachers failed to take along a current attendance record when leaving the building, which (unlike the wearing of shoes) is mandated by rule. Ultimate Factual Determinations Wiz Kidz is not guilty of storing a toxic substance in a place accessible to children because the evidence failed to establish an incident of noncompliance with Florida Administrative Code Rule 65C-22.002(1)(f). Wiz Kidz is not guilty of failing to provide adequate direct supervision because the evidence failed to establish an incident of noncompliance with rule 65C-22.001(5)(a). The undersigned determines, based upon clear and convincing evidence, that a staff member failed to possess a current attendance record during a fire drill, which constitutes an incident of noncompliance with licensing standard No. 33-12, which implements rule 65C-22.002(7)(e). This was Wiz Kidz' first occasion of noncompliance with licensing standard No. 33-12.
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 Wiz Kidz not in violation of the terms of probation. It is further RECOMMENDED that Wiz Kidz' application for renewal of license not be denied based on the commission of a Technical Support Violation. DONE AND ENTERED this 20th day of March, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of March, 2018.
Findings Of Fact The abuse incident central to the underlying proceeding in this case was a sexual assault against a female child by an older male child, both of whom were residents at the Lee County Children's Home where L. T. was employed as a caregiver. The abuse occurred while the residents were on a trip to the beach with other residents of the facility. Three adults, one male and two female, accompanied a total of 19 residents to the beach. The residents did not remain together once at the beach. The males residents went with the male adult and the females remained with the females. A series of events resulted in L. T. being the only one of the three who was able to visually locate the residents. She became aware that not all the residents were accounted for and began to search for the missing children. She discovered that a sexual assault had taken place. Subsequent to the abuse incident, the DHRS received an abuse report related to the matter. The investigative report in this matter incorrectly indicates that an investigation was performed by Michael B. Gregory. Another investigator, Mike Hally, investigated the incident, and apparently forwarded the materials to his supervisor for review prior to closing the case. A substantial period of time passed without DHRS action on the matter, during which time Mr. Hally transferred to another DHRS job. Agency officials eventually decided to classify the case as "proposed confirmed." Because Mr. Hally was, for technical reasons, unable to close out the case file, the matter was brought to Mr. Gregory by Jane Pigott, a DHRS official, who directed Mr. Gregory to close the case as "proposed confirmed." L. T. was apparently notified of the matter and requested that the report be expunged. By letter dated November 21, 1991, the Department of Health and Rehabilitative Services informed Respondent L. T. (through counsel) that her request to expunge the report of abuse was denied. The letter stated, "[o]n August 20, 1990, the department received a report that your client failed to ensure proper supervision resulting in injury to a child. A child protective investigation took place and was classified as proposed confirmed. As a result of your request, the record was reviewed and determined to be classified correctly." Respondent L. T. requested an administrative hearing to challenge the classification of the report. The Department forwarded the case to the Division of Administrative Hearings, which scheduled and noticed the proceeding. At hearing, the evidence failed to establish that the injury to a child was a result of any failure by L. T. to ensure proper supervision of the child.
The Issue The issues in this case are whether Respondent, Department of Children and Families (Department or Respondent), was substantially justified in initiating a disciplinary action against Petitioner, My First Steps of Bradenton, Inc. (My First Steps or Petitioner), and/or whether special circumstances exist that would make it unjust to award attorney's fees and costs to Petitioner pursuant to section 57.111, Florida Statutes (2019).1
Findings Of Fact The Department is the state agency responsible for licensing and regulating child care facilities, to ensure the health and safety of children in care. 3 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day time period for issuing the Final Order. See Fla. Admin. Code R. 28-106.216. The Department initiated the underlying action by issuing an Administrative Complaint against My First Steps, a licensed child care facility. My First Steps is owned and operated by Carina Piovera. It is organized as a corporation, with its principal office in Florida. When the underlying action was initiated, My First Steps had no more than 25 full-time employees and a net worth of not more than $2,000,000.00. As the parties stipulated, My First Steps is a small business party as defined in section 57.111(3)(d). My First Steps was the prevailing party in the underlying action. The Department was not a nominal party in that action. My First Steps timely filed its application for an award of attorney's fees and costs under section 57.111, less than 60 days after the Final Order was rendered. Petitioner filed an affidavit attesting to the attorney's fees and costs incurred in the underlying action, provided billing records, and submitted an attorney's affidavit attesting to the reasonableness of the hourly rate charged by counsel of record for Petitioner. Respondent filed a counter-affidavit that disputed certain charges and one cost item. At the hearing, Petitioner withdrew the items to which Respondent objected. Petitioner's revised claim, quantified in its Proposed Final Order, is for $7,015.00 in attorney's fees and $507.88 in costs. The revised claim is reasonable, appropriately supported, and not disputed by Respondent. The only disputed issues to be determined are related to the Department's defenses: whether the issuance of the Administrative Complaint was substantially justified; and/or whether special circumstances exist which would make the award of fees and costs to My First Steps unjust. Findings Related to Substantial Justification Defense The Administrative Complaint set forth the following alleged facts that were the basis for the charged violation: On May 30, 2018, K. Alejandra-Pacheco,[4] a child care personnel, worked on an art project with one of the children in her care, while the other children were climbing on up and down the chairs and taking off their shoes. Ms. Alejandra-Pacheco stated that she is not allowed to discipline the children, only the facility director, Carina Piovera. Ms. Piovera came into the classroom and made the children sit down. A.M., a one-year old toddler, was one of the children in the classroom. In it, Ms. Piovera is seen roughly handling A.M. by grabbing him, aggressively wiping his nose, having intense body language when talking to the child, forcefully pushing the child's chair into position at the table, and then aggressively put his hands on the table. A.M. is visibly afraid and upset, crying throughout the interaction with Ms. Piovera, who appears to be intimidating the child. This incident was recorded by the facility camera. The inappropriate discipline described above was frightening to the child and is a Class I violation of child care licensing standards. The charge against My First Steps was as follows: The foregoing facts violate Section 2.8, Child Care Facility Handbook, incorporated by reference in Rule 65C-22.001(6), F.A.C. (2017), which states in part: 2.8 Child Discipline A. The child care facility shall adopt a discipline policy consistent with Section 402.305(12), F.S., including standards that prohibit children from being subjected to discipline which is severe, 4 The staff person identified in the Administrative Complaint as K. Alejandra-Pacheco testified in the underlying action that her full name is Karina Alejandra Briseño Pacheco. She is referred to by different combinations of these four names throughout the record in this case, including Karina Briseño, Karina Pacheco, Alejandra Briseño, and Alejandra Briseño; and the name Briseño is sometimes spelled Briceño. All of these references are to the same person. She is referred to herein as Ms. Pacheco. humiliating, frightening, or associated with food, rest, or toileting. Spanking or any other form of physical punishment is prohibited. * * * The following discipline techniques shall be prohibited in the child care facility: The use of corporal punishment/including, but not limited to: Hitting, spanking, shaking, slapping, twisting, pulling, squeezing, or biting; Demanding excessive physical exercise, excessive rest, or strenuous or bizarre postures; Compelling a child to eat or have in his/her mouth soap, food, spices, or foreign substances; Exposing a child to extreme temperature; Rough or harsh handling of children, including but not limited to: lifting or jerking by one or both arms; pushing; forcing or restricting movement; lifting or moving by grasping clothing; covering a child's head. The penalty sought by the Administrative Complaint for the alleged Class I violation was a fine of $500.00. The factual allegations were primarily based on a video of the incident. The allegations reflect the collective perceptions of a group of Department personnel who met to assess the video when considering whether to issue an Administrative Complaint. The group included Maritza Gonzalez, who was and is the child care licensing supervisor for a region that includes Manatee County, where My First Steps in located; and Mary Beth Wehnes, the Department's expert in this case, who was the Department's regional program safety manager at the time. The Department's perception of the video was as follows: in the beginning, five of the six children circling a table in a classroom were left to their own devices while the teacher, Ms. Pacheco, was engaged in a one-on- one art project with one child at one end of the table. The five children were unruly, understandably so, considering these one- and two-year-olds were not given any appropriate activity, and did not want to sit still and do nothing. Some of the children, including A.M., were standing on their chairs and taking their shoes off; another child was chewing on a shoe. When A.M. hoisted himself up on the table (about 50 seconds into the video), the teacher spoke to him (though there is no audio, so what she said could not be determined). A.M. quickly scooted off the table and into his chair. Ms. Piovera then strode into the room and all of the children appeared to freeze. Ms. Piovera went straight to A.M., got down in front of A.M.'s chair, grabbed him and the chair, and moved in very close to hover over him. Her body language was intimidating, especially to a little one only 18 months old. When Ms. Piovera shifted a little to the side, A.M.'s face was revealed (at the 1:12 mark). He was crying and appeared frightened. Ms. Piovera then reached for a couple of tissues, and roughly wiped/pinched his nose several times, the second time so roughly that his feet flew up and his head went back. Shortly after that, Ms. Piovera forcefully turned and pushed A.M.'s chair, with him in it, up to the table. She then grabbed A.M.'s arms from under the table and forcefully lifted them up, then put them down on the table. A.M. put his head down on the table, continuing to cry. The child next to him also put her head on the table; all of the children seemed scared in reaction to Ms. Piovera. She then left the room. In viewing the video, the Department had the impression that Ms. Piovera came in to discipline the children, considering how the teacher was handling the classroom and how the children were acting before Ms. Piovera entered the room. The Department considered Ms. Piovera's actions in the room to be inappropriate discipline. The Department was concerned with the aggressive, intimidating body language of Ms. Piovera when she aggressively strode into the room, squatted down in front of A.M., grabbed him and his chair, and moved in to hover over him. The Department was concerned with Ms. Piovera's rough physical handling of A.M., when she repeatedly wiped his nose, pinching it as she wiped, so forcefully that she made his feet fly up and head go back. The Department was concerned by Ms. Piovera pushing the child in his chair up to the table, then grabbing his arms from under the table to forcefully lift them up and bring them back down on the table. The Department perceived this rough physical handling of A.M. to be the disciplinary consequence for his misbehavior. The Department considered it to be a serious matter that violated the licensing standards for child discipline, classified by rule as a Class I violation. The Department's decision to issue the Administrative Complaint also took into consideration a joint investigation of My First Steps, following a complaint to the central abuse hotline (Hotline). The complaint was made by A.M.'s mother, based on her observations from a camera feed in A.M.'s classroom at My First Steps. She saved the video to her phone. Ms. Gonzalez received the initial report regarding the incident by email from the child's mother on June 12, 2018, with additional follow-up information provided by the mother through June 15, 2018. Based on the nature of the allegations, Ms. Gonzalez instructed the mother to report the incident to the Hotline, operated by a different Department division. The Hotline received the mother's report of the incident, accepted the complaint for investigation, and referred it for a joint investigation: a child protective investigation to be conducted pursuant to standards in chapter 39, Florida Statutes, and corresponding rules; and a child care licensing complaint investigation to be conducted pursuant to licensure standards in section 402.305 and implementing rules. The child protective investigation was referred to the Manatee County Sheriff's Office (MCSO), the designated child protective investigator. The child care licensing complaint investigation was referred to Ms. Gonzalez, who assigned a child care licensing counselor. The joint investigation began on June 20, 2018. An on-site investigation was conducted at My First Steps that afternoon by the MCSO child protective investigators and the child care licensing counselor. The investigation centered on the video provided by A.M.'s mother. The owner/ director, Carina Piovera, was shown the video and interviewed, as was Ms. Pacheco, the teacher assigned to the classroom for one- and two-year-olds where the incident occurred. Ms. Gonzalez participated by telephone to translate the interview with Ms. Pacheco, who only spoke Spanish. Separate reports were prepared by the MCSO for the child protective investigation and by the child care licensing counselor assigned for the licensure complaint investigation. Both reports summarized the mother's complaint allegations, which were, in pertinent part5: The director (Carina) mistreated A.M. on [May 30, 2018]. There were 6 children in the classroom with the teacher. The teacher had one of the children with her doing an art project and the other 5 children were sitting at a table doing nothing. Then, the 5 children began taking off their shoes and standing in the chairs. The teacher never made the children sit down while she was with another student doing art. … Carina stormed in the room and hovered over the children. A.M. burst into tears and she grabbed him. Carina reached and grabbed a napkin to wipe A.M.'s nose twice very hard. Carina used enough force to cause A.M.'s head to go back and his feet lift off the floor. Carina took A.M.'s chair and shoved it under the table, pulled his arms up from under the table roughly and put his arms down. A.M. put his head down 5 The mother's Hotline complaint raised other issues addressed in the joint investigation, regarding her child being put in timeout, other children being put in timeout for long periods of time, and another child left to sleep in a chair. A longer video related to these other matters was not offered in evidence. These other complaint issues are omitted from the reports' summary of the mother's complaint because they are not germane to this case. The Department did not include charges in its Administrative Complaint for these other matters. and continued to cry. It is stated you could tell Carina was angry and was very forceful with A.M. The MCSO investigators' findings in the "Overall Safety Assessment" and "Summary/Findings Implications" sections of their report set forth their perception of the video. Included were findings that Ms. Piovera "forcefully" wiped A.M.'s nose and "caused the child's head to go back and his feet to come off the floor"; Ms. Piovera also "forcefully" put the child's arms on the table. The MCSO investigators included in the Overall Safety Assessment Ms. Piovera's statement to investigators that the video on the mother's phone was not accurate, so "it looks more rough than it actually was in real life." But, the report noted, Ms. Piovera stated (on June 20, 2018) that she did not have the original video "since [the incident] was almost one month ago." After June 20, 2018, the MCSO investigators checked with parents of other children at My First Steps and found no expressions of concern about their children's treatment. On July 16, 2018, they closed the child protective investigation under abuse and neglect standards in chapter 39 with a determination of "not substantiated." That is an intermediate determination, between "verified" and "no indicators." As described by Ms. Gonzalez from her experience in other investigations, "not substantiated" is used when the event actually happened, but it did not cause the level of harm required under chapter 39. Her description comports with the rule definition of the term.6 6 Florida Administrative Code Rule 65C-30.001(16) (December 2017) provides: "'Child Maltreatment Index' is a document that defines specific types of abuse, neglect, or abandonment; and guides decision making by staff at the [Hotline] and Child Protective Investigations regarding screening decisions and investigative findings. The 'Child Maltreatment Index,' CF Operating Procedure No. 175-04, October 2015, is incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref-06454." The linked rule-document, at page 5, provides the following definitions: "'Verified' is used when a preponderance of the credible evidence results in a determination the specific harm or threat of harm was the result of abuse, abandonment, or neglect. 'Not substantiated' is used when there is credible evidence which does not meet the standard of being a preponderance to support that the specific harm was the result of abuse, abandonment, or neglect. 'No indicators' is used when there is no credible evidence to support that the specific harm was the result of abuse, abandonment or neglect." (Emphasis added). The Department was aware that the child protective investigation was closed with the intermediate "not substantiated" determination. The Department considered both the outcome of the child protective investigation and the findings made by the MCSO investigators in their report, which were consistent with the Department's perception of the video. The Department also considered the investigation report of its licensing counselor, who assessed the complaint in the context of the child care facility licensing standards. The counselor's report found non-compliance with the child discipline standards in section 2.8 of the Child Care Facility Licensure Handbook (Handbook), as well as two other standards. The Recommended Order set forth how the ALJ perceived the incident upon consideration of the testimony at the hearing in the underlying action and his perception of the video (as discounted by the ALJ's finding in paragraph 8 that the video was "a little fast," a matter relevant to the special circumstances defense discussed below): Around 10:21 a.m., … Ms. Piovera entered the toddler room to assist Ms. Pacheco in redirecting the children to a new activity, i.e., to sing and do art work, after efforts by Ms. Pacheco to have the children sit down and keep their shoes on were unsuccessful. Redirection is considered a form of discipline by the Department, but Ms. Piovera considers moving to a new task a routine action in caring for toddlers. Just before Ms. Piovera entered the room, A.M. and two other children were standing in their chairs and climbing onto the table. When A.M. saw Ms. Piovera enter the room, he immediately sat down in the chair. Ms. Piovera placed him in an upright position, adjusted his pants, and observed that his nose needed to be wiped and he had taken one shoe off. His nose had crusted mucous and the discharge was green. The child was crying at this point. The mother acknowledged that A.M. does not like having his nose wiped. Ms. Piovera needed two swipes with a tissue to clear A.M.'s nose. His feet lifted slightly when his nose was wiped, but this was because A.M. was trying to avoid having his nose cleaned. Ms. Piovera also put his shoe back on. Although A.M. began crying when she first touched him, no unusual force or pressure was used, and there were no marks or bruises on the child. Within a few seconds after his nose was cleaned, A.M. became calm, stopped crying, and placed his head on the table. The class continued with painting activities. (RO at 6-7). The video evidence is subject to differing interpretations by reasonable persons. While Petitioner in its Proposed Final Order invited the undersigned to adopt the findings in the Recommended Order describing the incident shown on the video as the findings herein, that invitation must be declined, as the undersigned would describe the incident as portrayed in the video in substantially different terms from the Recommended Order. For example, while the undersigned would agree that Ms. Piovera came into the classroom to help Ms. Pacheco, who could not keep the children sitting down with their shoes on (and out of their mouths), there is no sign in the video that Ms. Piovera attempted to redirect children from actively standing on chairs and chewing on shoes to actively engaging in appropriate activities such as art and singing. Instead, the video shows that both before and after Ms. Piovera was in the room, only one child was provided an art activity. None of the other five children who were being unruly were redirected to an art activity, singing, or any other activity. And the "class" did not continue with painting activities after Ms. Piovera left the room; only one child continued a painting activity, the same child engaged in the one-on-one painting project with the teacher before Ms. Piovera's entrance. For the remaining one and one-half minutes of the video after Ms. Piovera left the classroom, no new activity was started for the five other children, including A.M. All five children were subdued in the aftermath of Ms. Piovera. A.M., in particular, continued to cry for a while after Ms. Piovera left the room, kept his head down on the table, and appeared morose, in contrast to the happy, active child he appeared to be before his encounter with Ms. Piovera. The undersigned also would not describe Ms. Piovera's handling of A.M. the same as in the Recommended Order. Instead, the undersigned would agree with the Department's perceptions when viewing the video before issuing the Administrative Complaint. A reasonable interpretation of the video evidence is that rather than making physical contact with A.M. to constructively redirect him to an appropriate activity, Ms. Piovera imposed a physical consequence on A.M. for misbehaving by roughly and forcefully wiping/pinching his nose, twisting and pushing A.M. in his chair up to the table, and forcefully pulling his arms up from under the table and pushing them down to the table. Ms. Piovera forced A.M. into the position of sitting at the table and forced his arms on the table not to prepare him to start a new activity, but as punishment. Ms. Piovera did not offer A.M. or the other five children any new activity; she left the room after she was done positioning A.M. so Ms. Pacheco could continue her one-on-one painting session with the same one child (and Ms. Pacheco did so for the last one and one-half minutes of the video). This interpretation is supported by the summary of the on-site investigation in the licensing inspection report. In summarizing Ms. Pacheco's interview, the report noted Ms. Pacheco said that the five children were behaving improperly while she was attempting to conduct a painting activity with one child. She was asked why she did not attempt to get the children in her classroom under control and she explained that only Ms. Piovera could "correct the children when they are off task."7 7 Ms. Gonzalez, who translated the interview, recalled Ms. Pacheco stating that only Ms. Piovera could discipline the children. Ms. Gonzalez remembered that because she made a point of asking Ms. Pacheco what she meant by "discipline." Ms. Pacheco responded that, "well, redirection is what is in the policy." It was reasonable for the Department to consider Reasonable persons can differ—and have differed—regarding their perceptions of the video. The allegations of fact in the Administrative Complaint are substantially supported by a reasonable perception of the video evidence, albeit that the ALJ in the underlying action saw it differently. The Administrative Complaint allegations are further supported by the investigations and findings of the child protective investigators and the child care licensing counselor in their respective reports. This material was all available to and considered by the Department before issuing the Administrative Complaint. The testimony at the final hearing in this case elicited by Petitioner's counsel makes the point that the allegations are supported by a reasonable perception of the video. In questioning the Department's expert, Petitioner's counsel asked whether it was a reasonable interpretation of the video for the ALJ to find that when the child's feet lifted up and head went back with Ms. Piovera's second nose wipe, that was the child pulling back because he does not like his nose wiped. The witness responded, "I don't agree with that." Counsel then asked, "But it's one that's possible, isn't it?" The witness agreed, "Sure." (Tr. at 91). The issue here is not whether the ALJ's findings reflect one possible interpretation of the video. The issue is whether another reasonable interpretation of the video—that of the Department's witnesses at the time, supported by the investigations—provided a reasonable basis for the allegations in the Administrative Complaint. The undersigned finds that there was a reasonable basis in fact for the allegations in the Administrative Complaint. Petitioner argued that the Department should have given weight to Ms. Piovera's statement that the reason for the mother's complaint was that information from the investigation provided by Ms. Gonzalez, who was part of the group that assessed the video when deciding whether to issue the Administrative Complaint. Her information supported the group's perception from the video itself. Ms. Gonzalez also made contemporary notes during the interview, but the notes are fairly sketchy, as would stand to reason given her focus on actively translating for Ms. Pacheco. the mother owed her money. Petitioner also argued the Department should have considered the fact that even though the mother saw the incident on the camera feed, she nonetheless let the child remain at the facility for several more hours, until coming to pick up him at 2:15 p.m. Lastly, Petitioner pointed to the mother's delay in lodging the complaint. None of these issues affect what is shown on the video or what was found in the investigative reports. If the mother's testimony had been the sole or primary evidence of the incident, then the points raised by Petitioner would bear on her credibility. However, the basis for the complaint was what the mother observed on the camera feed. It is noteworthy that the Department was able to, and did, independently assess the video evidence and, as previously noted, did not include charges in the Administrative Complaint for some aspects of the mother's complaint. As for the charge stemming from the incident shown on the video in evidence, however, Petitioner's points do not undermine the reasonable basis in fact for the allegations. Findings Related to Special Circumstances Defense Ms. Piovera was not forthright regarding the availability of the actual video footage recorded on her security system. She repeatedly suggested that the original video footage would present a different, slower scene in which she would not appear to be aggressive and rough with A.M., to plant the seed of doubt regarding the accuracy of the video provided by the mother, while not ever producing the original video footage so her theory could be tested. In Ms. Piovera's interview with the MCSO investigators, she told them that the video obtained from the complaining mother was not accurate, making her appear to be rougher than she actually was in dealing with A.M. But, she said, the original video was no longer available, because it had been nearly one month since the May 30, 2020, incident. When Ms. Piovera said that—on June 20, 2018—21 days had passed since the incident. The pre-hearing documents in the underlying action officially recognized in this case at the Department's request show that Ms. Piovera made the same claim of inaccuracy when deposed in the underlying action, but suggested that she could obtain the original video from the security system company. That triggered an elaborate effort by the Department to obtain the original video in discovery, strung along by Petitioner's promises through her attorney that the video would be forthcoming, followed by changing excuses as to why the video was not yet forthcoming but would be soon, and changing stories as to when and how it would be provided. The Department's motion to compel in early February 2019 laid out the efforts to that point to obtain the video. See First Amended Motion to Compel at 2, ¶ 9, filed Feb. 8, 2019. The motion to compel was granted, but still no video was produced; instead, there were more promises and changing stories as to when and how the video would be provided. Ultimately, the Department moved for sanctions, which was granted by Order issued March 18, 2019 (Sanction Order). The Sanction Order recited that the Department had a copy of the surveillance footage from a third party (the mother), but that My First Steps "contends the copy does not accurately depict the incident in question because the video replay is faster than the real time. As a sanction, the Department requests that [My First Steps] be prevented from objecting to the accuracy of the Department's copy." The ALJ agreed, and imposed the following sanction: "[My First Steps] will not be allowed to object to the accuracy or admissibility of the Department's copy of the facility surveillance video for May 30, 2018." My First Steps moved for rehearing of the Sanction Order. The Department's response chronicled the progression of assurances provided by Ms. Piovera, through counsel, none of which were met, and ultimately, as before, the story changed. The ALJ denied the motion for rehearing. Again, at the hearing in the underlying action, counsel for My First Steps tried to revisit the Sanction Order, offering case law suggesting harsh sanctions should not be imposed against a party for the counsel's actions. The ALJ stated that he did not think counsel was stonewalling, but he believed that Ms. Piovera was stonewalling. The ALJ denied this second request for reconsideration of the Sanction Order. (underlying action Tr. at 29-30). Petitioner essentially concedes that the discovery fiasco is a special circumstance, but argues it should only render part of the claimed fees unjust. Petitioner contends that its agreement to withdraw those items should end the issue of special circumstances. Petitioner's view of the limited scope and impact of these special circumstances is not supported by the record. The issue of the original video's availability was more than just a discovery matter. Instead, Ms. Piovera invoked her claim that the mother's copy of the video was inaccurate, making her appear rougher with the child than she was, when she was investigated on June 20, 2018. The investigators found her statement significant enough to include it in their Overall Safety Assessment, after they described the video showing that Ms. Piovera was rough and forceful with the child. The investigators also made a point of recounting Ms. Piovera's representation that the original video was no longer available by that point, three weeks after the incident. A fair inference from that recitation is that the investigators asked Ms. Piovera for the original video after she said the copy they were reviewing was not accurate. The issue of the original video's availability also had an impact on the outcome of the underlying action. Despite the Sanction Order, at the final hearing Ms. Piovera was permitted to testify over objection—for the stated purpose of allowing My First Steps to make a record—that the video in evidence was not accurate, appearing faster than real life. She painted the picture that the "inaccurate" video made her look like she rushed into the room and was aggressive and rough. Again, notwithstanding the Sanction Order and the stated purpose for allowing this testimony, the ALJ ended up accepting Ms. Piovera's testimony, finding that the video in evidence was "a little fast." (RO at 5, ¶ 8). Implicitly, the ALJ accepted the implications: that Ms. Piovera appeared rough when she really was not; Ms. Piovera appeared to rush in when she really did not move that fast; and Ms. Piovera's actions appeared aggressive and harsh when they really were not. A critical point that must be made here is that Ms. Piovera's own testimony at the hearing in the underlying action established that, contrary to what she told the investigators on June 20, 2018, she could have obtained the original video, and she knew she could have obtained the original video, within 30 days of the recording. Ms. Piovera's clear testimony on this point was as follows: "[W]hen I purchased the equipment, they told me they only keep it for 30 days because the memory is not that big. So after 30 days, everything is going to erase." (underlying action Tr. at 33) (emphasis added). Ms. Piovera thus admitted she knew on June 20, 2018, that she had nine more days to obtain the original video before it would be erased. Yet she told the investigators it was already too late to obtain the original video.8 Ms. Piovera added at the hearing in the underlying action, for good measure, a new excuse for not trying to obtain the original video, stating that "for the privacy and one of the main reasons why I didn't turn this video [sic] is because the parents were not okay with me showing their children in the video. That was one of the main reasons why. I had a letter for them to sign and they refused." (underlying action Tr. at 32). That would not explain why she told investigators the original video was no longer available, nor why she would hesitate to provide an original video to support her claim that the mother's copy of the video, which showed the children, was inaccurate. These special circumstances are far more than just a discovery matter. Ms. Piovera misrepresented to the MCSO child protective investigators that the original video was no longer available, and used her misrepresentation as 8 After admitting that she has known since she purchased the equipment, and, therefore, knew on June 20, 2018, that she could still obtain the original video, Ms. Piovera claimed at the hearing in the underlying action that she actually wanted to pull up the original video footage on her equipment right then and there, during the investigation, to show the MCSO investigators, but they told her not to, because the video copy showed no evidence of abuse. That claim is not credible; it does not square with her contrary statement that the investigators made a point of including in their report in the Overall Safety Assessment. a way to undermine the video provided by the mother without actually proving her claim that the mother's video was inaccurate, distorting her actions and making her look rougher than she said she actually was. Ms. Piovera employed the same strategy in the underlying action. That this was a strategic plan is evident from her attorney's billing records, which include the following entry four weeks before the hearing: "Notify Carina of need to demonstrate that phone video of incident is not accurate." See Pet. Ex. 5, billing entry for February 21, 2019. The strategy to undermine the perceived reliability of the video in evidence is both a concession by Petitioner that the video provides a reasonable basis for the allegations and charge of rough and harsh handling of A.M. in the Administrative Complaint, and a reason for finding special circumstances making the award of attorney's fees and costs unjust. In short, Ms. Piovera's inconsistent and false statements regarding the original video allowed her to play both sides of the issue, injecting doubt as to the reliability of the mother's video without having to actually prove it.9 Ms. Piovera could have obtained the original video had she really believed it would have helped her respond to the investigation. Instead, she lied and told the investigators she could no longer obtain it. That she succeeded in injecting the same doubt in the administrative hearing, despite the Sanction Order, requires a finding that these special circumstances went to the heart of the issue, and may well have tainted the outcome of the underlying action. Under these unique circumstances, an award of attorney's fees and costs would be unjust. 9 The undersigned does not suggest that counsel for Petitioner sponsored or was aware of his client's misrepresentations. Ms. Piovera's testimony at the final hearing in the underlying action that she knew since she purchased the surveillance equipment that she could obtain the original video within 30 days of the recording appeared to be the first time this statement was made. Conceivably, the statement could have been overlooked even after it slipped out.
The Issue Whether Respondent, in November 2006, violated child care facility licensing standards relating to supervision set forth in Florida Administrative Code Rule 65C-22.001(5), as alleged by the Department of Children and Family Services (Department) in its December 15, 2006, letter to Respondent. If so, whether Respondent should be fined $1,000.00 for this violation, as proposed by the Department in the aforesaid December 15, 2006, letter.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, including Thursday, November 16, 2006, Respondent operated a child care facility located at 780 Fisherman Street in Opa Locka, Florida (Facility) pursuant to a license issued by the Department, which was effective June 10, 2006, through June 9, 2007. On November 16, 2006, J. D. was one of nine children between the ages of 12 and 23 months in the Facility's Wobbler/Toddler class. Two properly credentialed Facility staff members, Charnette Muldrow and Barry Thompson, were assigned to oversee the children in the class that day. Cheryl Smith is now, and was at all times material to the instant case, including November 16, 2006, the Facility's office manager. Among her various responsibilities is to make sure that state-mandated staff-to-child ratios are maintained in each of the Facility's classrooms. To this end, she has placed posters in the classrooms indicating what these "appropriate ratios" are and that they "must be maintained at all times." In addition, she "do[es] counts [of staff and children in each classroom] every hour on the hour." She did these "counts" in J. D.'s Wobbler/Toddler classroom on November 16, 2006, and each time found the staff-to-child ratio to be "correct" (one staff member for every six children). Sometime around noon on November 16, 2006, a Facility staff member brought J. D. to Ms. Smith's office. J. D. was not crying, although she had a roundish red mark on her right cheek that she had not had when her mother had dropped her off at the Facility earlier that day. "It looked like ringworm to [Ms. Smith] at first." There were no discernible "puncture wounds," nor was there any blood. The staff member who had brought J. D. to the office explained to Ms Smith that J. D. had "bumped her face" on the "corner cabinet in the classroom." After administering first-aid to J. D., Ms. Smith attempted to contact J. D.'s mother, J. F., by telephone. She was unable to reach J. F., but left a message at J. F.'s workplace. J. F. returned Ms. Smith's call at 12:54 p.m. and was told by Ms. Smith that J. D. had "bumped her head on a cabinet while playing, and she ha[d] a little bruise," but was "doing fine." J. F. left work at 4:30 p.m. and went directly to the Facility to pick up J. D. Upon arriving at the Facility, J. F. first went "upstairs" to see Ms. Smith, who told her "about the incident and what [had] happened." J. F. then went to retrieve J. D. (who was "downstairs"). It did not appear to J. F., when she examined the mark on J. D.'s cheek, that the mark was "from the cabinet." In her opinion, it looked like J. D. had been bitten by "somebody,"4 a view that she expressed upon returning to Ms. Smith's office. Ms. Smith replied, "There's no biters in here.5 Nobody bit J." Before leaving the Facility with J. D., J. F. signed an Accident/Incident Report that Ms. Smith had filled out. According to the completed report, on "11/16/06 at 12:00 noon," J. D. "was playing with . . . toys and bumped her face on the corner cabinet," leaving a "red mark on the right side of her face"; Mr. Thompson was a "[w]itness[] to [the] [a]ccident/[i]ncident"; the injured area was treated with "antiseptic spray[,] triple antibiotic ointment and a cold compress"; and a message was left with J. F. "to call school." J. F. took J. D. directly from the Facility to the Skylake office of Pediatric Associates, a pediatric group practice to which J. D.'s regular pediatrician belonged. J. D.'s regular pediatrician was unavailable that evening, so J. D. saw someone else,6 who gave her a signed and dated handwritten note, which read as follows: To whom it may concern The injuries on [J. D.'s] cheek and back are consistent with a human bite. Please investigate.[7] Thank you. J. F. reported to the local police department, as well as to the Department, that J. D. had been injured at the Facility. J. F. provided this information to Ian Fleary, the Department's childcare licensing supervisor for the north area of the southeast zone, during a visit that she made to Mr. Fleary's office late in the afternoon on Friday, November 17, 2006. J. F. brought J. D. with her to Mr. Fleary's office and showed Mr. Fleary the red mark on J. F.'s cheek, as well as three other, less visible marks on J. F. (one on her cheek, beneath the red mark; one on her lower back; and one on her right forearm).8 Mr. Fleary took photographs of all four marks.9 Mr. Fleary asked one of his subordinates, Linda Reiling, to "address [J. F.'s] complaint as soon as possible." Ms. Reiling, accompanied by Mr. Fleary, went to the Facility on Monday, November 20, 2006, to investigate J. F.'s complaint. Ms. Reiling and Mr. Fleary interviewed Facility staff members, including Ms. Muldrow and Mr. Thompson.10 Ms. Muldrow stated that she had gone to the restroom, having asked another staff member "to watch the children" in her absence, and first "saw the mark on [J. D.'s] cheek" upon her return to the classroom. Mr. Thompson advised that he was "on lunch break at the time the incident occurred."11 No one to whom Ms. Reiling and Mr. Fleary spoke at the Facility "admitted seeing [J. D.] being bitten." Based on her investigation, Ms. Reiling was unable to determine, one way or another, whether the staff-to-child ratio in J. D.'s classroom was "correct" on "[t]he day of the incident," but she did find that there was a "lack of supervision." Ms. Reiling prepared a written complaint documenting this finding and provided it to Ms. Smith. Meloni Fincher, a child protective investigator with the Department, also investigated the matter. She was assigned the case on November 17, 2006, after the incident had been reported to the Florida Abuse Hotline. Ms. Fincher began her investigation by visiting J. F. and J. D. at their home that same day (November 17, 2006), some time after 4:00 p.m. During her visit, Ms. Fincher observed that J. D. had "bruises to her cheek, her back, and [also] her arm." Ms. Fincher was unable to determine the nature or cause of these injuries, so she made arrangements for J. D. to be seen on November 21, 2006, by a University of Miami Child Protection Team physician. Ms. Fincher went to the Facility on November 21, 2006, but was unable to speak to any staff members about the incident at that time. She returned to the Facility on December 7, 2006. This time, she interviewed Ms. Muldrow, Mr. Thompson, Ms. Smith, and Dawnise Mobley.12 None of the interviewees claimed to be an eyewitness to the incident, having personal knowledge of what happened to J. D. After receiving a copy of the Child Protection Team's "medical report," which contained the team's determination that J. D. had "bite marks at different stages [of] healing [which were] consistent with another child [having] bit[ten] [her]," Ms. Fincher, on December 12, 2006, "closed the case" finding "[v]erified indicators of inadequate supervision."13 The evidence received at the final hearing does not allow the undersigned, applying a clear and convincing competent evidence standard, to reach the same conclusion that Ms. Fincher and Ms. Reiling did regarding the adequacy of the supervision J. D. received at the Facility on November 16, 2006. While the evidence is sufficient to support a finding that J. D. suffered a single (red) mark on her right cheek while at the Facility that day, it does not clearly and convincingly establish that she was being inadequately supervised at the time. Inferring that Respondent failed to provide J. D. with adequate supervision based on the mere fact that she received this mark while in Respondent's care is unwarranted, absent a clear and convincing showing (enabling the undersigned to conclude, with a firm belief and conviction and without hesitancy) that a toddler would not receive such a mark while at a child care facility in a classroom setting like J. D. was in unless there was a lack of adequate supervision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order dismissing the "inadequate supervision" charge made in its December 15, 2006, letter to Respondent. DONE AND ENTERED this 11th day of October, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2007.
The Issue Whether the Respondent committed an act of violence or used force on any person except in the lawful protection of one's self or another from physical harm and, therefore, should have his license renewal as a Class "D" Security Officer denied pursuant to Section 493.6118(1)(j) and (2), Florida Statutes.
Findings Of Fact The Petitioner, Michael S. Snow, was at all times relevant to these proceedings a licensed Class "D" Security Officer. The Respondent is the agency that licenses and regulates security officers pursuant to Chapter 493, Florida Statutes. On or about April 12, 2003, the Petitioner filed an application to renew his license as a Class "D" Security Officer. The Respondent advised the Petitioner by letter of its intent to deny his application; the Petitioner requested a hearing; and these proceedings ensued. Subsequently, the Respondent amended its letter of denial, and the letter of August 14, 2003, (Second Amended Administrative Denial of License), constitutes the charging document. That letter states that the application is denied because of the applicant's failure to qualify under Section 493.6118(1)(j), Florida Statutes, because the applicant committed an act of violence or used force on another person that was not for the lawful protection of himself or another. At the hearing, Union County Deputy Sheriff Terry Cranford was called to testify. Deputy Cranford identified an affidavit that he had prepared on November 24, 2002, in relation to an investigation in which the Petitioner was the alleged perpetrator of abuse of an 18-month old child. The affidavit, Respondent's Exhibit numbered 1, was prepared by the deputy after he had interviewed various witnesses in the case; however, the deputy did not observe any of the alleged conduct. The deputy did observe the child on November 22, 2002, during the course of his investigation. The alleged incident, which involved the Petitioner striking the child in the face, took place on November 21, 2002, some 24 hours earlier. The deputy did not mention in his affidavit any injuries he observed. The deputy did not testify at hearing to any injuries to the child. The deputy stated that the child was too young to provide any information on the incident. The deputy's investigative focus at the time he prepared the affidavit was on the mother of the child and another relative. He did not interview the Petitioner. All the information that he obtained about the Petitioner's involvement was through the Child Protective Investigator, Ms. Joiner. The Respondent called Janice Joiner, an investigator with the Department of Children and Family Services (DCFS), who testified regarding her investigation of the incident. Like the deputy, above, Ms Joiner did not observe the incident. It is clear from her testimony and that of the child's mother, that the child's natural father reported the incident. He picked up the child from the daycare on the afternoon of November 21, 2002, and raised questions about the red handprint on the child's face. As a result of the investigation, DCFS initiated a dependency action, which precluded with the right of the child's mother to have custody of the child during the investigation, legal proceedings, and subsequent mediation between attorneys representing the child's mother and father. As a result of the investigation initiated by the child's father, his ex-wife, the child's mother, had to agree to end her relationship with the Petitioner. Ms. Joiner testified regarding what the Petitioner told her. He admitted he struck the child while putting the child in his car seat, when the child grabbed his uniform epaulet and would not let go. Ms. Joiner opined that this was abusive, and stated that the doctor who examined the child said it was abusive. Ms. Joiner did not state upon what information she based this opinion. She mentioned the handprint she saw on the day following the incident, which she described as faint. The Petitioner entered pretrial intervention on the charges brought against him, and successfully completed the program which called for him, to among other things, attend parenting and anger management classes. He was never tried; has never plead or been found guilt of any offense related to this incident; and his civil rights were never affected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue the Petitioner a Class D Security Officer's license. DONE AND ENTERED this 20th day of May, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 20th day of May, 2004. COPIES FURNISHED: Michael S. Snow Post Office Box 1131 MacClenny, Florida 32063 Michael T. McGuckin, Esquire Assistant General Counsel Department of Agriculture and Consumer Services Division of Licensing Post Office Box 6687 Tallahassee, Florida 32314-6687 Brenda D. Hyatt, Bureau Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32314-6687 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32314-6687
The Issue Whether the Department of Children and Family Services (DCF) may revoke Respondent's family foster home license for inflicting physical, oral, and emotional abuse on three foster children in her care, as more particularly stated in FAHIS Report No. 2000-172767; intimidating the children to ask that visits with their parents be stopped; and having sufficient income, pursuant to Chapter 65C-13, Florida Statutes.
Findings Of Fact Insufficient Income Respondent Nedra Street has held a Family Foster Home License since July 6, 1998. At the time she was licensed, DCF did not disqualify her application because she was between jobs. DCF was aware she was living on unemployment compensation and child support for her natural son, D. DCF has no rule establishing strict economic parameters for foster home licensees. Its rule only requires that foster parents have sufficient income to absorb four to six weeks of a foster child's care until a board payment is received. This requirement is to ensure that foster parents will not divert board payments for foster care children to their own needs and so that they will spend the board payments on the foster children entrusted to their care. So far as the testifying DCF supervisor knew, no foster care license ever has been revoked for insufficient income. When Respondent was licensed, she was not required to submit a budget. No rule requires that an applicant or licensee submit a budget. However, DCF personnel currently requires that applicants submit a budget, and DCF reviews the applicant's stated income and expenditures. What formula, if any, DCF uses for this review was not disclosed. Because DCF has never asked Respondent for a budget, it has never analyzed her income and expenditures in any detail. Respondent, with her elderly mother, own and live on a 60-acre farm. They support themselves by raising cattle, by growing timber for sale, and by leasing their peanut allotment. Their home, its contents, and real property are owned free and clear. Respondent holds a B.S. degree in elementary education and is Florida-certified to teach elementary school. She also is a Certified Nursing Assistant and a Certified Medical Assistant. At all times material, she was working only part- time "as needed" in a delicatessen, so that she could devote more time to her natural son and her foster children. As of the date of hearing, she was employed at Shands Medical Center. Respondent successfully fostered six other children before the three children who are the focus of this case. There is no credible evidence that she short-changed DCF or any child as to food, clothing, or shelter. In making the foregoing finding, I have considered Taleca's deposition testimony that Respondent gave no food to the three children over any weekend, "No, never one of us," and find it not credible upon the evidence as a whole. Indeed, all other witnesses testified that at all times material Respondent fed the children adequately and kept Taleca, Michael, and Yana, clean, well-groomed, and well- dressed, either by purchasing their clothing new, or by receiving good quality clothing from one or another public or private source. Oral and Emotional Abuse; Intimidating the Children to Ask that Visits With Their Parents Be Stopped Foster parents are required to be supportive of the foster child's birth parents by not saying demeaning or degrading things about them to the child and by being supportive of the family of origin. At some times material, it was DCF's policy to urge contact between Taleca, Michael, and Yana and their natural parents and to work for ultimate reunion. During the material period of time, Respondent and teachers reported to counselors that Taleca's, Michael's, and Yana's behavior changed for the worse and remained bad for as long as four days after each supervised visitation with their natural mother. At some point, Respondent urged DCF counselors and the school counselor, Lynne Holston, to stop the visitations. While there was no proof that Respondent ever encouraged reunion of Taleca, Michael, and Yana with their natural mother or father, likewise, there was no credible or reliable evidence she ever demeaned the parents to the children. In making the foregoing finding, I have discounted as not credible Taleca's vague testimony concerning either inquiries or statements by Respondent about the natural parents' prior abuse of the children or failure to feed them. Inflicting Physical Abuse on Taleca, Michael, or Yana By rule, DCF prohibits foster parents from administering corporal punishment to foster children. Foster parents annually sign the disciplinary policy on this prohibition. Respondent received training prior to becoming a foster parent, which included this prohibition. She was clearly aware she was not permitted to use corporal punishment on foster children. Foster children Yana (four years old), Michael (six years old) and Taleca (10 years old) are siblings who were placed in Respondent's family foster home on July 28, 1999. They remained in Respondent's care for more than a year until November 3, 2000, when they were removed by DCF as a result of allegations of physical abuse. When removed from Respondent's care in 2000, Taleca and Michael bore many scars and bruises, most of which would not normally have been seen under ordinary clothes, but some of which might be visible if the children were wearing shorts. When placed with Respondent in 1999, all three children had been physically abused by one or both natural parents. According to Advanced Registered Nurse Practitioner Linda Cox Ebbeling, Child Protection Team (CPT) records show referrals of Michael to DCF in 1995, when he was 17 months old and while he was still living with his natural mother, for his being hit in the face and head and for bruises from a metal- tipped belt, and later the same year for a broken arm. All three children had one or more psychiatric issues to resolve when they were placed with Respondent in July, 1999. Michael, particularly, was hyperactive, aggressive, and violent towards other children when placed with Respondent. He was particularly violent toward his younger sister Yana, but as one counselor testified, "Yana was gaining on him quickly." A kindergarten teacher described Michael as being unable to be touched without his jerking away when he first entered her class in August 1999, a few days after being placed with Respondent. Lynne Holston, M.S.W., is a child therapist of 23 years' experience and a registered play therapist. Taleca relied on Ms. Halston for comfort and moral support during her testimony at hearing. Ms. Holston worked regularly with Respondent and the three children at Joyce Bullock Elementary School from the end of September 1999 until August 2000. She found Respondent responsive to her suggestions and proactive in getting all the necessary assessments (medical, psychological, and educational) necessary so that Michael could qualify for an appropriate Individual Education Plan (IEP) suitable for his special needs. Respondent also sat in class with him to calm him down when he had bad days. Nothing in the children's interactions with each other, herself, or Respondent suggested to Ms. Holston that Respondent was abusing any of the three children. She inquired approximately every six weeks if anyone had touched them uncomfortably, and both Taleca and Michael answered in the negative each time. During this time, she never saw fresh wounds on Taleca and saw only one fresh wound on Michael. That wound was traced to a child-on-child encounter when Michael was hit on the head with a brick by another boy. Michael was impulsive, unfocused, agitated, over- anxious, and had many school incident reports during the 1999- 2000 school year. Whether these reports always involved violence is unclear, but many did. Through Respondent's persistence, Michael was diagnosed with attention deficit/hyperactivity disorder (ADHD) and medicated. His behavior improved. At some point, Yana also became subject to legitimately prescribed behavior-modifying medication. Over time, all three of the children's aggressive and traumatized play, which Ms. Holston related to the birth mother, became more organized and resolved. In November 1999, DCF investigated a complaint that Respondent had slapped Michael in the face. Initially, Taleca stated that the slapping incident had taken place. At that time, various parts of Michael's body were photographed for a CPT medical examination, but the photographs do not show all the body parts that became an issue in the instant case arising in November 2000. Some scarring on his buttocks and at least one bruise was found on Michael's left lateral thigh in 1999, which marks corresponded to two of twelve marks found in November 2000, see infra. The 1999 case was closed as unfounded and the children were returned to Respondent's care. Apparently, one reason for the "unfounded" classification was that Michael and Taleca recanted. According to Ms. Holston, in November 1999, supervised visitation with the natural parents also was suspended because the children were recovering memories of abuse by the natural parents and did not want to see the birth mother. Ms. Holston personally observed a cross-examination of Michael by his natural mother at about this time concerning the DCF investigation into whether or not Respondent had slapped Michael. Ms. Holston felt the mother's examination was upsetting and frightening to Michael. Michael's deportment improved further after he was assigned to a self-contained ESE classroom in approximately August 2000. Taleca and Michael were honor roll students by the 2000-2001 school year. On March 27, 2000, a DCF counselor interviewed Taleca, Michael, and Yana at school, outside Respondent's presence, and reported no marks, bruises, physical indicators, or statements of abuse. DCF Counselor Deanna Sheppard interviewed them in the same manner on August 10, 2000, and October 31, 2000, three days before DCF's removal of them from Respondent's home. Ms. Sheppard also detected no marks, bruises, physical indicators, or statements of abuse. Many ordinary, prudent, and credible witnesses, who had observed and known Respondent and the children professionally and personally over varying periods of time, uniformly expressed their belief that Respondent had been a good foster parent and testified that they had observed no marks on the children or abuse by the Respondent. Michael had bonded with his kindergarten teacher who had maintained weekly, but not private, contact with him into the 2000-2001 school year. Michael never told her of any abuse by anyone. She has reported abuse of other children in the past, but she noticed no evidence that Michael was abused. It is undisputed that sometime on October 31, 2000, Yana sustained several first and second degree burns on her neck and chin from one or both of Respondent's two curling irons. What is disputed is how the burning occurred, whether Respondent inflicted the burns, and whether Respondent was justified in her failure to report the incident to DCF. On November 3, 2000, Benita Cooper, Child Protective Investigator (CPI), responded to an abuse hotline complaint naming Yana as a victim, and went to the children's school. Her interviews with all three children on that day are deemed reliable hearsay.2 At the school, Ms. Cooper interviewed Yana separately and privately, using open-ended questions. In response to Ms. Cooper's question of "What happened?" Yana told her that she had been beaten with a spoon. Yana made no statement whatsoever about her burns. During this interview, Ms. Cooper also observed marks on Yana's arm, elbow, back, under her chin, and on the back of her neck. Ms. Cooper considered the neck wounds and some other marks fresh. She considered still other marks to be old, but she did not date the marks. In Ms. Cooper's opinion, Yana's neck injuries were all ones a foster parent is expected to report. In Ms. Brannen's, the DCF District Supervisor of Foster Home Licensing's, opinion, it is unclear whether a foster parent is required to report an injury of this kind when they are capable of treating it medically. Ms. Cooper also questioned Taleca and Michael separately and privately at their school. They were reluctant to talk to her and denied they had been hit, denied being disciplined at home, or knowing anything about Yana's injuries. It is recognized that children often do not report on-going abuse at the first opportunity. Deanna Sheppard had become DCF Foster Care Counselor for Taleca, Michael, and Yana as of June 2000, but she had not seen them except as noted above and had developed no particular rapport with them. Her recitation of hearsay statements of the children on November 3 and 4, 2000, have been considered, pursuant to Section 90.803(23), Florida Statutes, and found reliable.3 Accordingly, it is found that on November 3, prior to her CPT physical examination, Yana stated, under reasonably reliable circumstances, that "Mama was doing my hair and burned me with the curling iron," and that "Mama whooped me with a spoon." Ms. Sheppard understood her to be referring to Respondent. Advanced Registered Nurse Practitioner Susan Pendrak examined Yana on November 3, 2000. Advanced Registered Nurse Practitioner Linda Cox Ebbeling examined Taleca and Michael on November 4, 2000. Both women are qualified by education, training, and experience to render expert nursing opinions. The fact that their opinions with regard to the wounds of the children that they examined were couched in terms of "reasonable medical certainty" is not disqualifying, as the undersigned has accepted their opinions as being given only within their expertise of nursing. Nurse Pendrak's findings with regard to Yana's wounds on November 3, 2000, were that the hyper-pigmented linear marks on Yana's neck, arm, and hand were consistent with burns from a curling iron. She believed those on the neck had been inflicted by another person and were not accidental because of the location, pattern, and number of burns. She did not believe that any burns could have been inflicted accidentally due to the location, pattern, and number of burns, and further stated that if a sibling had done it, Yana could have gotten away. However, there were no marks on Yana clearly showing she had been held by an adult. Therefore, an accident cannot be ruled out. In the context of Yana's November 3, 2000, examination by Nurse Pendrak, which I find constituted reliable circumstances under Section 90.803(23), Florida Statutes, Yana repeatedly told Nurse Pendrak that "my momma whooped me" with a "whooping spoon," which Yana described as black and wooden, and with a "whooping" stick. Yana stated she did not want to go "to my momma's house." She made no statements about the burns. Nurse Pendrak concluded that Yana was referring to her foster mom, Respondent. 4 After Yana's examination, Ms. Sheppard transported all three children to the Trenton DCF Office where they were interviewed by Bonnie Robinson, a Child Protection Investigator, while Ms. Sheppard took notes. Ms. Sheppard's recitation of hearsay statements of the children has been considered, pursuant to Section 90.803(23), Florida Statutes, and found reliable.5 At the Trenton Office, Bonnie Robinson interviewed each of the children separately while Ms. Sheppard took notes. Ms. Sheppard seems a little vague about whether or not Yana said, at this interview, that she was burned by her Mama, but is clear that she identified Respondent as the one who had "whooped [her] with a spoon." She is also clear that Michael stated he had been whipped on his feet, hands, and butt, with a black spoon and a brown and gray stick and that Taleca said she had been whipped with a black spoon with tape on the handle, a stick or paddle, and an "x" belt, and that these items were kept in Respondent's nightstand. Each of the children identified Respondent's bedroom by colors. Deputy Sheriff Joe Barrera accompanied Bonnie Robinson and Ms. Sheppard to Respondent's home on the evening of November 3, 2000. Taleca, Michael, and Yana were not present in the home, but D., Respondent's natural son, was present. Respondent denied ever seeing the scars on Taleca and Michael in photographs she was shown because the scars were under their clothes and she did not bathe them.6 With regard to photographs of Yana's burns, she stated that Yana burned herself with the curling irons while Respondent was in the restroom. She denied ever hitting any of the children. Deputy Barrera seized a large, black, plastic serving spoon, with the handle wrapped in gray duct tape and a hole in the handle for hanging it, and a paint stirrer in natural wood with red lettering on it from the bottom drawer of Respondent's bedside night stand.7 At hearing, Taleca testified that this was not the spoon with which Respondent beat her, but she recognized the stirrer which she called a "paddle." Respondent testified this was a spoon reserved for feeding the dog, and the children had hit each other with it. Respondent's testimony on the spoon as the children's weapon is not credible, and she did not explain the stirrer. On Saturday, November 4, 2000, after the three children had spent the night together in an emergency shelter, Deanna Sheppard picked up Taleca and Michael for their CPT medical examination by Nurse Linda Cox Ebbeling. In the context of her examination of him, Nurse Ebbeling asked Michael about twelve marks on his body. This procedure constituted reliable conditions under Section 90.803(23), Florida Statutes.8 Michael could give no history about the cause of many of his scars, and this is reasonable in light of his age and the number of times he must have been scarred even by his own hyperactivity. Due to Michael's inability to give a history for many of his injuries, Nurse Ebbeling leaned toward an opinion that he "could have" been abused, as opposed to clearly opining that he had been abused. Nonetheless, she related that Michael attributed two of the marks on his body to being hit by Respondent with a black spoon and a switch, and in her professional opinion, these two marks had been, in fact, inflicted. Michael stated that another one of the marks was from his "old mom," as distinguished from Respondent. Michael also stated that Respondent slammed him against the wall and used a stick or switch to hit his hands, butt, and the bottoms of his feet. He stated that he had seen Respondent hit his two sisters, but he did not relate that Respondent had jumped on him. Nurse Ebbeling did not professionally confirm that Michael had been slammed against a wall or jumped upon. She eliminated the disparities on Michael's feet from being bruises or inflicted wounds, as conjectured by other witnesses, and attributed them to Michael simply having a different skin texture in that area. Several other marks on Michael's body looked inflicted to her, but she could not rule out accidental injury. Overall, Michael evidenced multiple healed and healing lesions, some of which were consistent with his telling her they had been inflicted by Respondent. Michael's healed lesions could not be placed as having occurred before he went to live with Respondent or placed during the year and a-half he had lived with her. In the context of her examination of Taleca on November 4, 2000, which I find constituted reliable circumstances under Section 90.803(23), Florida Statutes,9 Nurse Ebbeling determined that the multiple curvilinear lesions and hyper-pigmented lesions on Taleca's right hip and back shoulder area were consistent with Taleca's statements that Respondent had hit her on her hip and back with a black spoon, but that Taleca did not have an explanation for several other marks on her body. Taleca's other allegations at that time of Respondent stomping on her and banging her head into things were not verified by the nurse. Taleca and Michael were deposed January 30, 2001. These depositions are fully in evidence and have been considered in their entirety, as if the testimony therein had been given at hearing.10 At the time of Taleca's and Michael's January 30, 2001, depositions, the three children were residing with foster care mother, Ethel Riley. Ms. Riley has successfully fostered 30-40 children since 1994. After the children's depositions and about two weeks before February 26, 2001, Ms. Riley overheard Michael state to Taleca, during a squabble, "Ms. Street didn't burn Yana's neck. Yana burned her own self." Ms. Riley attempted to report this conversation to Ms. Sheppard and was rebuffed. This hearsay statement also is considered reliable pursuant to Section 90.803(23), Florida Statutes.11 On or about February 26, 2001, after Michael had become uncontrollable at school, a complaint was called in to the abuse hotline about Ms. Riley abusing the three children involved in the present case. Taleca and Michael gave statements that they had been paddled by Ms. Riley with a board. No CPT investigation of this incident occurred and Ms. Sheppard simply removed the children to another foster home, apparently on the theory that there had been "inappropriate" corporal punishment but not abuse. Another hotline complaint, alleging Ms. Riley had locked Yana in her garage, was investigated the next day. Apparently, this report was listed as unfounded, because Ms. Riley is still licensed. Ms. Riley credibly denied abusing any children and stated that her garage is, in fact, a recreational room for the children. She noted that two weeks before Taleca and Michael accused her of paddling them, she had signed a form permitting school officials to paddle Michael instead of suspending him. Mary Anna Hovey holds a Ph.D. in clinical psychology and sociology and is a Florida-licensed clinical psychologist with at least 17 years of experience with children. Dr. Hovey is qualified by education, training, and experience to give expert testimony in the field of child psychology. She interviewed Taleca, Michael, and Yana in March 2001, four months after the children were removed from Respondent's home. She spent approximately three and a-half hours with each child separately. Appropriately under the case law, Dr. Hovey did not comment on the credibility of the child witnesses or their hearsay statements, but her expertise has been considered in assessing the reliability of the child-hearsay statements, the children's deposition testimony, and Taleca's live testimony. Specifically, it has been considered in relation to each child's respective consistency or inconsistency with the psychological "affect" of abused children versus children who have been coached, who concoct stories, or who fantasize. The corroborative evidence for each child's hearsay statements under Section 90.803(23), Florida Statutes, are the photographs of the children's respective wounds, the nursing evidence of causality and dating of the wounds, and the fact that a spoon and stirrer matching the children's general descriptions were found in complete accord with the children's statements. Having fulfilled all statutory requirements for determining that the hearsay statements are admissible and may be considered, the evidence as a whole must be considered and weighed. Michael's videotape deposition, like Taleca's live testimony, allowed assessment of each child's credibility based on candor, demeanor, and consistency in a confrontational legal setting. Taleca's testimony, live and by deposition, and Michael's video deposition testimony are generally consistent with their respective prior hearsay statements concerning being hit with a black spoon or small stick or paddle by Respondent, and the reasons therefore (bad grades, bad behavior, and failed farm chores) but they differ significantly and implausibly on other matters. Those other allegations are rejected.12 Based on Taleca's and Michael's candor and demeanor while testifying; the expert evidence that abused children may exaggerate or add more severe details with the intent of persuading adults that a smaller, but real, abuse actually occurred; several prior inconsistent or incomplete statements of the respective children closer in time to the actual events and another statement made while at Ms. Riley's house, I find that the only credible parts of these children's testimony is that they were beaten by Respondent with a spoon and/or a small paddle, like the paint stirrer, and I make this finding primarily because the children were immediately able to direct investigators to a spoon and a paint stirrer reasonably matching their descriptions, and these items, according to competent nursing opinion, matched some of the marks on each child. Taleca's denial at hearing that the spoon located in Respondent's nightstand was the same spoon used by Respondent to beat her does not undermine her credibility in light of her recognizing the paint stirrer as a "paddle." The fact that Taleca and Michael have subsequently accused Ms. Riley of paddling them suggests a developing pattern of attacking foster parents, but does not undermine the fact that in Respondent's case, both children could direct investigators to the specific striking implements or the fact that Michael was able to distinguish marks made on him by his "old mom" from those made by Respondent. As to Taleca's live and deposition testimony that Respondent intentionally burned Yana with a curling iron, I detect a desire to please whichever attorney was asking the question and to embellish so as to fill in parts of events about which she did not know. She admitted several times that she did not see Respondent intentionally burn Yana with a curling iron and the gist of her testimony is that she assumed that Respondent intentionally burned Yana, because often when Yana wiggled while the curling process was going on, Respondent said something like, "If you don't hold still, I will burn you." Taleca assumed the comment was a threat which was ultimately carried-out, while Respondent's statement may just as clearly have constituted a warning. Taleca's history of prior child abuse probably precludes her inferring an innocent motive. Respondent testified credibly that on October 31, 2000, she had intended to take Yana to a Halloween party at school after driving to a neighboring town to see her mother, who had been in and out of the hospital twice within the last few days due to complications of a heart attack. However, Yana had "the runs," so she had taken her home. The two curling irons Respondent used for herself and the girls in the morning had been plugged in all day because Respondent had forgotten to unplug them, and after the older children came home, while Respondent was in the shower, Yana was burned with the curling irons. Respondent suspected that Michael might have done it or Yana had done it herself. Respondent did not report the burns to DCF because the children's counselor, Ms. Sheppard, did not have a pager and had not given her an after-hours phone number, and also because between October 31 and November 3, 2000, Respondent's mother was in and out of the hospital twice more. The two Advanced Registered Nurse Practitioners testified that Respondent correctly treated Yana's neck burns with Neosporin. Both Advanced Registered Nurse Practitioners agreed that leaving the burns open to the air after applying Neosporin would have been appropriate, or if there were a chance dirt would get in the wounds when Yana went to school, it would have been appropriate to cover them with clean, sterile gauze. One nursing witness testified that a band-aid would be a sufficient covering, provided the gauze fully covered the burned area. Letting the sticky part of the band-aid touch the burned area would not be appropriate. Respondent used a regular-sized band-aid on the largest of the burn wounds on November 3, 2000, when she sent Yana to school. Later in the day, Mesdames Cooper, Sheppard, and Pendrak found that the sticky part of the band-aid had come in contact with the wound. Yana's out-of-court statements, while found individually reliable in terms of Section 90.803 (23), Florida Statutes, are not fully credible. The evidence as a whole, specifically Respondent's compelling and credible direct refutation of Yana's version of events and Michael's out-of- court statement overheard by Ms. Riley, are persuasive that Yana did not consistently relate Respondent to her burns because the burns were her own fault. Nurse Pendrak's testimony that the pattern of the curling iron burns is only consistent with abuse is not persuasive, since she cannot rule out Yana's involvement.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
