The Issue Whether Petitioner, Department of Children and Families’ (the Department), intended action to cite Respondent, Kids Village Early Learning Center, with a Class I violation and impose a fine in the amount of $500, is appropriate.
Findings Of Fact The Department is responsible for licensing and monitoring “child care facilities,” as that term is defined in section 402.302(2), Florida Statutes. Kids Village is a child care facility licensed by the Department. Kids Village is operated by Angela Mitchell and is located at 1000 West Tharpe Street, Suite 24, Tallahassee, Florida. Kids Village is located in a shopping area commonly referred to as a “strip mall,” a series of retail and office establishments located along a sidewalk with exterior entrances. A Dollar General store is located across the parking lot from the strip mall. On November 2, 2017, L.C., a two-year-old child enrolled at Kids Village, exited the facility unaccompanied and on his own volition. A stranger spotted the child in the parking lot near the Dollar General store and left her vehicle to pick up the child. A parent of a former student at Kids Village, who works in the strip mall, recognized L.C. and returned him to the facility. L.C. was absent from the facility for approximately four minutes. Teresa Walker, a teacher at Kids Village, who was working on the day of the incident, called and reported the incident to Ms. Mitchell, who was not working at the facility that day. Both Ms. Walker and Ms. Mitchell completed required incident reports and filed them with the Department. The incident was also the subject of an anonymous complaint received by the Department’s child abuse hotline the same day. Elizabeth Provost, a Department family services counselor, received both the incident reports and the complaint and began an investigation. As part of her investigation, Ms. Provost interviewed the child protective investigator who received the complaint from the abuse hotline, as well as Ms. Mitchell and Ms. Walker. Ms. Provost also viewed the facility’s security camera footage from the day of the incident. Based on her investigation, Ms. Provost determined that L.C.’s mother arrived at the facility on the morning of November 6, 2017, signed the child in at the reception desk, engaged in conversation with another employee of the facility, looked around the corner where a gate separates the reception area from a hallway leading to classrooms, then exited the facility. Afterward, security video shows L.C. exiting the facility without supervision. Based upon her investigation, Ms. Provost concluded that the facility was in violation of Florida Administrative Code Rule 65C-22.001(5), which reads, in pertinent part, as follows: Direct supervision means actively watching and directing children’s activities within the same room or designated outdoor play area, and responding to the needs of the child. Child care personnel at a facility must be assigned to provide direct supervision to a specific group of children at all times. Ms. Provost also determined the violation was a Class I violation of Department rules, which is described as “the most serious in nature, [which] pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child.” Fla. Admin. Code R. 65C-22.010(1)(d)1. At hearing, Ms. Mitchell admitted that, on November 2, 2016, L.C. was indeed faced with a serious or imminent threat to his safety which could have resulted in injury or death. As such, Ms. Mitchell admitted the Department properly determined the incident was a Class I violation of rule 65C-22.001(5). Ms. Mitchell’s contention was that Kids Village was not completely at fault, and that the penalty assessed should be reduced to account for the mother’s negligence. L.C. was known to the staff at Kids Village as a “runner.” He experienced separation anxiety and would frequently try to follow his mother when she left the facility after dropping him off for school. Ms. Mitchell testified that L.C.’s mother had been instructed to walk L.C. to his classroom and hand him over to his teacher before leaving the facility. Ms. Mitchell faults the mother for having signed the child in on the morning of the incident, but leaving the facility without walking the child all the way to his classroom. The evidence adduced at hearing did not support that version of the facts. Ms. Walker was the only witness who testified at the final hearing who was actually at the facility on the day in question. Her recollection of the events was clear and her testimony was credible. Ms. Walker works in the “baby room,” which is located to the left of the reception area past the reception desk. The gate separating the reception area from the hallway to the classrooms is to the right of the reception desk. Ms. Walker testified that after his mother signs L.C. and his older brother in on most mornings, L.C. comes to stay with her in the baby room. Ms. Walker gives him hugs and extra attention to help overcome his anxiety, then walks him to his classroom when he is calm. On the morning in question, L.C.’s mother came into the facility and signed the children in at the reception desk. Signing a child in requires both completing a physical sign-in sheet, and an electronic interface with a computer system. While his mother was signing in the children, L.C. went to the baby room where Ms. Walker greeted him and hugged him. L.C.’s mother finished signing in the children and talking to the staff, then she turned to find both children gone. The mother “hollered out” to Ms. Walker something to the effect of “Where did the children go?” Ms. Walker replied that they had gone “to the back.” L.C.’s mother walked over to the gate separating the reception area from the classroom hallway and peered around it down the hallway. She then exited the facility. Shortly thereafter, L.C. came back through the gate, into the reception area, and exited the facility through the front door unaccompanied. L.C. was alone outside the facility in a crowded parking lot of a retail strip mall for almost five minutes. He had crossed the parking lot during morning traffic to almost reach the Dollar General store. L.C. was spotted by a stranger who got out of their own vehicle to pick up the child. L.C. was recognized, and returned to the facility, by someone who worked at a nearby store. One does not need an overactive imagination to list the dangers that could have befallen the child during that brief time period. Kids Village has taken corrective action since the incident and installed a security system on the front door which requires a person to push a button on a panel next to the door in order to exit the facility. There was no testimony regarding any prior citations against Kids Village for violation of child care licensing standards. The investigative summary prepared by Ms. Provost states, “Kid’s Village has one prior with the Department earlier in 2016[;] there were no indicators of inadequate supervision.” Rule 65C-22.010(2)(e) provides appropriate disciplinary sanctions to be imposed for Class I violations, as follows: For the first and second violation of a Class I standard, the department shall, upon applying the factors in Section 402.310(1), F.S., issue an administrative complaint imposing a fine of not less than $100 nor more than $500 per day for each violation, and may impose other disciplinary sanctions in addition to the fine. Section 402.310(1)(b) provides: In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered: The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 401.301-402.319 have been violated. Actions taken by the licensee or registrant to correct the violation or remedy complaints. Any previous violations of the licensee or registrant. In determining to impose a $500 penalty, Ms. Provost considered the subsequent remedial action taken by Kids Village to prevent future escapes by children in its care. She also considered the serious threat of harm or death posed to L.C. due to inadequate supervision by Kids Village. Imposition of the maximum fine for the Class I violation is supported by the record in this case. Neither the statute nor the rule direct the Department to consider the negligence of persons other than the licensee in determining the appropriate penalty to be imposed for a Class I violation.
Recommendation Upon consideration of the evidence presented at final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Children and Families, finding Kids Village Early Learning Center committed a Class I violation of child care facility licensing standards and imposing a monetary sanction of $500. DONE AND ENTERED this 1st day of August, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2017. COPIES FURNISHED: Lisa M. Eilertsen, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308 (eServed) Angela Mitchell Kids Village Early Learning Center Suite 24 1000 West Tharpe Street Tallahassee, Florida 32303 (eServed) Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Windwood Boulevard Tallahassee, Florida 32399-0700 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Respondent's employee hit or forcefully grabbed children in care, as alleged in the Administrative Complaint; and, if so, whether Petitioner should impose a fine of $400.00 against Respondent, a licensed child care facility, for the commission, by an employee, of an act that meets the statutory definition of child abuse.
Findings Of Fact At all relevant times, Respondent Lincoln Marti Community Agency, Inc., d/b/a Lincoln Marti ("LMCA"), held a Certificate of License, numbered C11MD1532, which authorized LMCA to operate a child care facility (the "School") in Miami Beach, Florida, for the period from June 7, 2016, through December 4, 2016. As a licensed child care facility, LMCA falls under the regulatory jurisdiction of Petitioner Department of Children and Families ("DCF"). On August 25, 2016, Laura Pantano arrived at the School in the afternoon to pick up her child. While waiting in the reception area, Ms. Pantano noticed the real-time video feeds from the surveillance cameras in the classrooms. These live videos were displayed on multiple monitors in plain view. Ms. Pantano focused her attention on the classroom of Clara Gonzalez-Quintero. Although her child was not in Ms. Quintero's class, Ms. Pantano harbored suspicions that Ms. Quintero had been hitting children. Sure enough, right on cue, Ms. Quintero appeared to forcefully grab and hit a child. It is not disputed in this proceeding that Ms. Quintero used corporal discipline on two children, D.D. and S.M, at the very moment Ms. Pantano happened to be watching the closed-circuit television for just such an occurrence. That said, no one having personal knowledge of the incident in question testified at hearing. Ms. Pantano testified, but she was not actually an eyewitness, for she merely observed live surveillance video on a display device, not the incident itself. Naturally, the surveillance video is in evidence, allowing the undersigned (and anyone else) to see exactly what Ms. Pantano saw that day.1/ Yet, while the video evidence is both captivating and seemingly unbiased, it is a mistake to assume that the assertive narrative of this (or any) video is objective and unambiguous, for rarely is that true, if ever. Viewers of filmic evidence, including the undersigned, do not somehow become eyewitnesses to a genuine occurrence; we perceive only the video, and the video merely represents, imperfectly, the real events captured on camera. Of necessity, each viewer——such as Ms. Pantano, who as stated above was predisposed to believe the worst about Ms. Quintero——projects onto the images his or her own interpretation of the scenes depicted. As the fact-finder, the undersigned must determine the significance, meaning, and story of the images preserved in the video based upon a critical review of the film in conjunction with a careful consideration of all the available evidence. Had the fact been disputed, the undersigned would have struggled with the question of whether Ms. Quintero "struck" D.D.2/ or merely made incidental nonviolent contact of the sort parents and teachers routinely use when redirecting a disobedient child. One significant limitation of the video is that it lacks sound. During the crucial moments, Ms. Quintero appears to be reprimanding D.D., who was three years old at the time, but if so, the video provides no proof of the reasons, for we cannot hear what she is saying. At the same time, however, it is reasonable to assume that Ms. Quintero had some bona fide basis for approaching D.D., for no evidence to the contrary was offered. On the video, Ms. Quintero appears to pat D.D. on the shoulder while addressing the child. Without audio, however, this action is ambiguous. Is she punishing, exhorting, or encouraging the child? Hard to tell. D.D. seems to put his hands over his ears. Fear, protective response, or defiance? Take your pick. Then — did she just slap him? It happens so fast, the picture is not clear, and the angle of the shot less than ideal. Maybe. Something happened, to be sure, but different viewers will form different conclusions about what the video depicts. Because LMCA concedes the point, and because the filmic evidence, though ambiguous, justifies such acquiescence, the undersigned finds that Ms. Quintero administered a form of physical punishment, which violated both the law3/ and LMCA's written policy on discipline. But the undersigned does not find that the corporal discipline at issue evinced malice or cruelty. The record, in short, convinces the undersigned to find that physical contact occurred, but not violent contact. Believing that she had seen a teacher repeatedly slap a child, Ms. Pantano rushed upstairs to confront Ms. Quintero in the classroom, while she simultaneously called the police on her cellphone. When she arrived in the classroom, excited and crying, Ms. Pantano screamed accusations at the teacher, who denied any wrongdoing. The commotion drew the School's director, Yanet Perez-Cruz, to the room, where she heard Ms. Pantano, in front of the children, uttering a conditional threat to kill Ms. Quintero, the condition being Ms. Pantano's possession of a knife, which fortunately for everyone involved was not met. Within a short time, the police arrived and immediately set to work investigating the incident. Neither D.D. nor any of the other children were found to have visible physical injuries attributable to Ms. Quintero. No evidence of such was presented at hearing, and the undersigned finds that Ms. Quintero did not cause any physical harm to D.D., S.M., or any child at the School on the day in question. LMCA fired Ms. Quintero the next day, not for hurting a child, but for violating its policy on corporal punishment. As for possible mental injury, D.D. was anxious, did not sleep quite as well, and had some instances of bed-wetting after the occurrence with Ms. Quintero, according to his mother. These symptoms, however, reflected at most a marginal aggravation of preexisting conditions, and within a few weeks or so D.D. had returned to his baseline. In addition, D.D. had been receiving speech therapy, for about ten months before the incident, to treat a stutter. In the months following the occurrence at issue, after which he had been abruptly removed from the School and enrolled in another day care facility, D.D. made rapid improvement in his speech, to the point that by the time of the hearing, D.D.'s stutter was nearly gone. The record lacks convincing evidence that D.D.'s intellectual or psychological capacity was injured by Ms. Quintero, as there is no persuasive proof of any discernible and substantial impairment of D.D.'s ability to function within normal limits. To the contrary, the evidence shows that, as of the hearing, D.D. is functioning within the normal ranges of intellectual and psychological performance and not displaying any signs of even mild, much less severe, mental or emotional impairment. With regard to S.M., there is likewise no convincing evidence of any significant mental injury. Similar to D.D., S.M. was observed, by her parent, to be somewhat more anxious than usual following the incident with Ms. Quintero, but this general anxiety resolved before long and was not causing S.M. any problems at the time of the hearing. Other evidence suggests, credibly, that S.M. is (as of the hearing) a happy, intelligent, and normal child evincing no discernable impairments in intellectual or psychological functioning. In sum, neither D.D. nor S.M. suffered any physical harm at the hands of Ms. Quintero, and although there is some (but not clear and convincing) evidence that one or both children might have experienced mild emotional or psychological distress——as manifested by, e.g., bed-wetting or anxiety——in the immediate aftermath of the events at the School on August 25, 2016, it is clear that such symptoms did not persist or substantially impair either child, even briefly, and that within a few months, if not sooner, both D.D. and S.M. were back to normal. At hearing, LMAC presented Michael J. DiTomasso, Ph.D., as an expert witness. Dr. DiTomasso is a clinical psychologist who specializes in forensic psychology and, to the point, child abuse. Indeed, Dr. DiTomasso has testified frequently as an expert for DCF in dependency trials involving child abuse and child neglect. Dr. DiTomasso provided the following credible and convincing overview of the current dispute: Okay. So we have a video recording of some unpleasant behavior on the part of a teacher. And I reviewed this. I looked at it. I actually watched it a couple of times. I see that she hit the kid, she shook the child. She was unpleasant with the children. And I understand that this behavior is prohibited by the school. . . . But does the -- does what we see in this tape rise to something monstrous that we would think is going to cause significant impairment in a child's psychological life somewhere down the line? Maybe the first question is: Did it cause -- does it cause significant physical damage? But everyone says no. The police say no, the mothers say no, the children -- that went to a doctor there's no medical findings. So by every measure, DCF says no. By every measure everyone who considered actual physical damage said no. So, no, we're not at the psychological damage. What we see in these tapes, it's unpleasant, of course. But, I mean, is there anyone, really, who never saw behavior like this before in their lives? In their own family, in their own lives, in a Target. In a Target store, in the K-Mart, we see this kind of behavior. We don't like it, but we're not -- we're not looking at it as catastrophic. We're looking at it as maybe unpleasant to see. And the parents are maybe looking at it as appropriate because parents in America believe in physical discipline of their children, corporal punishment of the children -- of children is accepted by most -- most parents in America and even more here in Florida, in the south. * * * If the corporal punishment causes broken bones or fractures or bruises or welts, oh, we're talking a different name. But that's not what happened for these kids. This was ordinary run-of-the-mill corporal punishment in a place where it shouldn't have happened. But the fact that it happened in a place where it shouldn't have happened doesn't make it a traumatic event that leads to psychological harm down the line. Tr. 351-54. The undersigned agrees with the foregoing description and explanation of the video evidence. The bottom line, according to Dr. DiTomasso, is that no "meaningful disruption of a child's ability to function and enjoy his life" happened, "it's not going to happen, it shouldn't be expected to ever happen based only on the event [at the School on August 25, 2016,] and the follow-up seems to show that it hasn't." Tr. 414. The undersigned accepts Dr. DiTommasso's opinion on cause-and-effect and determines as a matter of ultimate fact that neither of the subject children suffered a "mental injury" as defined in section 39.01(42), Florida Statutes, as a result of the incident in question.4/ Ultimate Factual Determinations The undersigned determines that LMCA's employee, Ms. Quintero, while caring for children at the School on August 25, 2016, did not commit an act or omission that meets the definition of child abuse or neglect provided in chapter 39.5/
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 exonerating Lincoln Marti Community Agency, Inc., d/b/a Lincoln Marti, from the accusation of Child Abuse or Neglect as charged in the Administrative Complaint. DONE AND ENTERED this 4th day of April, 2017, 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 4th day of April, 2017.
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 Is Petitioner entitled to be exempt from disqualification to work in a position of trust or responsibility, having been declared ineligible to work in that position by virtue of offenses involving child abuse and contributing to the dependency of a minor?
Findings Of Fact Petitioner has two children, M.B. and D.P. On February 11, 1993, those children were two years old and eight months old, respectively. Both children were residing with Petitioner. At that time Petitioner and the children lived in Gulf County, Florida. Around 8:00 p.m. to 9:00 p.m. on February 11, 1993, Petitioner decided to leave her apartment and go to a nearby store. At that time she left D.P. in the care of Sabina Daniels, Petitioner's step-sister, who was thirteen years old on that date. The Petitioner took M.B. to her neighbor's apartment and left that child with Dianna Harrison, an adult. However, the Gulf County Sheriff's office received a call around 10:30 p.m. on February 11, 1993, indicating that a child had been left unattended at the Pine Ridge Apartments where Petitioner resided. Officer Stacy Strickland, now a Sergeant, went to Petitioner's apartment around 10:34 p.m. and tried to get someone to answer the door to the apartment. No one answered. Consequently, Officer Strickland contacted the apartment manager who opened the door. Officer Strickland discovered D.P. standing in a baby bed. No other person was in the apartment at that time. Officer Strickland sought the assistance of other persons to help provide emergency care to the child. While waiting for that assistance, Officer Strickland remained in the apartment for fifteen to twenty minutes. When Officer Strickland and other officials departed Petitioner's apartment, they left a note for the Petitioner to call the Gulf County Sheriff's office concerning her child D.P. Petitioner called the Gulf County Sheriff's office at around 12:00 a.m., February 12, 1993. Petitioner came to the Gulf County Sheriff's office around 12:20 a.m., on February 12, 1993. At that time, Petitioner was placed under arrest for aggravated child abuse for having left D.P. unattended. Following her arrest, Officer Strickland read the Petitioner her rights under the Miranda decision, to include the right to seek counsel to aid her in confronting the charge. Although Petitioner was less than forthcoming during the hearing, concerning the disposition of the charges that arose from the incident in which D.P. had been left unattended, it is clear that Petitioner voluntarily entered a plea of guilty to child abuse and contributing to the dependency of a minor in the case of State of Florida v. Denine Pittman, in the County Court, in and for Gulf County, Florida, Number 93-133M. A judgment and sentence in that case was entered on March 3, 1993, requiring the Petitioner to serve three months' probation in which she would pay $30 per month for supervisory fees and was required to make monthly contacts with a probation officer. In addition, Petitioner was required to pay a fine in the amount of $214. It can be properly inferred that Petitioner complied with requirements in the judgment and sentence. Petitioner's assertions at hearing that she only left D.P. on the night in question for 30 minutes, that she had never been advised of her Miranda rights by Officer Strickland on February 12, 1993, and that she did not realize that she could have contested the charges through a trial are rejected. In 1995, Petitioner moved from Gulf County to Panama City, Florida. In August 1996, Petitioner was working in a child care facility in Panama City known as Phoenix Preschool. In her position she was providing direct care to children and was subjected to background screening in accordance with Chapter 435, Florida Statutes. Through the screening process Respondent discovered the disposition in Case No. 93-133M, leading to Petitioner's disqualification to work in a position of special trust with children and the contest of that determination through Petitioner's request for an exemption from that disqualification. In her testimony at hearing Petitioner expressed her desire to continue to work with children as an employee in a child care facility. The record does not reveal that Petitioner has had other circumstances involving inappropriate behavior involving her own children or claims of inappropriate behavior or treatment of other children for whom she has rendered care. On November 11, 1988, Petitioner was provided a certificate indicating the successful completion of twenty hours of child care training offered by the Department of Health and Rehabilitative Services and the Department of Education. On September 28, 1996, Petitioner received a certificate of completion of Dr. Jean Feldman's Classroom Management Workshop. The course lasted six hours. By the nature of the appearance of the certificate it is found to relate to training to assist in caring for children. On September 30, 1996, Petitioner received a certificate from the Department of Health and Rehabilitative Services and the Department of Education for completing a ten- hour course for developmentally appropriate practices for young children. On November 30, 1996, Petitioner received a certificate of completion of "Mr. Al's" course on "Music, Movement and More." This course lasted six hours. By the nature of the appearance of the certificate it is found to relate to children's issues. In 1996, in relation to her position of teacher-aide for the Phoenix Preschool, Petitioner received training from the Department of Health and Rehabilitative Services related to child care in-service. Ms. Gloria Lawrence testified at the hearing. She worked with Petitioner at the Phoenix Preschool, and found that Petitioner did a good job with children, in that Petitioner got along with children at the Preschool. Ms. Lawrence observed that Petitioner was trustworthy and responsible with those children. Ms. Lawrence's testimony is credited. Ms. Frances Frazier testified at the hearing. Ms. Frazier is a close friend of Petitioner and has known Petitioner during the course of Petitioner's life. Ms. Frazier finds the Petitioner to be reliable and responsible and to be good with children and believes that Petitioner has learned from the mistake that Petitioner made which formed the basis for Petitioner's disqualification to work in a position of special trust. Ms. Frazier has known Petitioner to baby-sit for Ms. Frazier's grandchildren. Ms. Frazier has not found the Petitioner to abuse children. The only incident that Ms. Frazier is aware of concerning the Petitioner leaving children unattended was the occasion under discussion here. Ms. Frazier's testimony is credited. In addition, Petitioner presented letters from Ms. Vanessa Fennell, Ms. Annie S. Fields, Ms. Dianna Harrison, Ms. Beverly Daniels, Ms. Charlotte L. Medley, Ms. Candy Robinson, and Pastor Shirley Jenkins concerning Petitioner's basic personality as a concerned person for children and the elderly.
Recommendation Upon consideration of the fact finding and conclusions of law reached, it is RECOMMENDED that a final order be entered which grants Petitioner an exemption from disqualification to be employed in a position of special trust to work with children. DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1997. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Denine Pittman Apartment D43 801 West 13th Street Panama City, Florida 32401 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
