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 The issue in this proceeding is whether Petitioner's application for licensure as a child care facility should be granted.
Findings Of Fact Petitioner, God's Little Blessings, applied for licensure as a child care facility on March 23, 2015. The application was completed and submitted by Leslie Fudge, the owner and proposed operator of the facility. The proposed director was Adrienne Wimas (spelling uncertain). After review of the application, the Department denied Petitioner a child care facility license on May 1, 2015. The sole reason for the denial was contained in the Department's denial letter dated May 1, 2015. The letter stated: This letter will serve to advise you that your Application . . . is hereby denied based on review of your background screening, including the Florida Central Abuse Hotline Record Search. No other reason for denial was stated in the Department's letter. While not stating the specific facts regarding the background screening and abuse record search, the evidence demonstrated that the denial was based on one confirmed report of neglect (Abuse Report 2003-031849-01) against Ms. Fudge for inadequate supervision of resident R.H., and medical neglect of residents R.G. and J.D. Both incidents occurred at about the same time on or about March 5, 2003, while Ms. Fudge was employed at Tallahassee Development Center (Center). The Center provided residential and direct care to developmentally disabled residents at its facility. At the time, Ms. Fudge was employed as care staff responsible for providing direct one-to-one care to R.H. She was not assigned to provide care to R.G. Other than Ms. Fudge, no witness with personal knowledge of these incidents testified at the hearing. Consequently, many of the statements contained in the 2003 abuse report remain hearsay which was not corroborated by any competent substantial evidence. Additionally, the age of the report, confusing allegations and lack of factual basis for its findings of inadequate supervision or medical neglect cause the abuse report to be unreliable and untrustworthy as evidence. As such, except as found below, the report by itself cannot form a basis for denial of Petitioner's application. Ms. Fudge was the only person who testified at the hearing with personal knowledge about the events of March 5, 2003. She testified, and such testimony is accepted, that on or around March 5, 2003, she was not a shift supervisor, but was assigned as a direct care aide with "one-to-one" supervision of R.H. The testimonial evidence from Ms. Fudge and other employees of the Center during 2003 demonstrated that Tallahassee Developmental Center employees were trained that one-to-one supervision meant that "the person had always to be watched" and "you could never leave [the person] alone." There was no credible evidence that the person could not be alone in the restroom, that the staff assigned to watch the person had to be within arm's length of the resident, or that such observation was not varied according to the behavior plan for an individual resident. Further, the testimonial evidence showed that staff and Ms. Fudge knew R.H. would run away usually to hide in a particular office, but occasionally with the police being called if R.H. were to leave the building and could not be found. The evidence did not demonstrate that R.H. behaviorally was aggressive or dangerous to others, but only that he would run away and hide. Finally, the testimonial evidence showed that the facility was in the process of trying to wean R.H. off of one-to-one supervision by implementing a plan of moving away from him and permitting him times of less supervision. On March 5, 2003, the testimonial evidence demonstrated that Ms. Fudge, R.H., and other residents were gathered in the living room of the house where they lived. The phone in the adjoining office rang and Ms. Fudge answered it. While on the phone she could observe R.H. through the window between the rooms. At some point, R.H. was sent to go to the restroom. It was unclear who sent him. After finishing in the restroom, he did not return to the living room, but "left out of the bathroom" to another office, locked the door and hid behind the desk. Ms. Fudge could see him in the office and called a nurse to bring the key so that the office could be unlocked. At the time, R.H. was not in danger and there was no evidence that demonstrated he was in danger. There was some evidence that another staff person mistakenly may have believed that R.H. had left the building. However, the better evidence showed that Ms. Fudge knew where R.H. was, could see R.H. in the room in which he was locked, and that he was not in danger at the time. Given R.H.'s behavior plan, none of these facts establish neglect by Ms. Fudge in the supervision of R.H. There was no credible, non-hearsay evidence presented at hearing as to the abuse report's allegations regarding resident R.G. or J.D. As such, the Department's evidence consisted only of an old unreliable abuse report consisting of uncorroborated hearsay about an incident involving R.G. and perhaps J.D. and the testimony of the investigator who had no personal knowledge of the facts regarding the incident or the supervisory policies of the Center. Given these facts, Respondent has failed to demonstrate that Ms. Fudge neglected, either in supervision or medically, residents who were in her care. In fact, the evidence showed that Petitioner has been caring for and/or supervising people for many years and has the character and capacity to continue to do so. Since the unproven abuse report was the only basis on which the Department based its decision to deny Petitioner's application, there was nothing in the record to support its determination that Petitioner lacked moral character or the ability to safely operate a child care facility. Therefore, Petitioner's application for such licensure should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner's application for licensure as a child care facility is granted. DONE AND ENTERED this 2nd day of November, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2015. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Building 2, Suite 204 Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 (eServed) Leslie Fudge God's Little Blessings Apartment F-8 216 Dixie Drive Tallahassee, Florida 32304 Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308-5333 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families 1317 Winewood Boulevard, Building 2, Room 204 Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families 1317 Winewood Boulevard, Building 1, Room 202 Tallahassee, Florida 32399-0700 (eServed)
The Issue At issue is whether Respondent committed the Class II violation alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is authorized to regulate child care facilities pursuant to sections 402.301 through 402.319, Florida Statutes. Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301 through 402.319. Chappell operates at eight child care locations in Duval and St. Johns Counties, admitting children from the ages of six weeks to five years. Chappell also has an after school program for children ages five to eight, and a summer camp for children ages five to ten. Chappell is licensed to operate the Child Care Facility at 8400 Baycenter Road, Jacksonville, Florida, pursuant to License Number C04DU0093. The facility on Baycenter Road is commonly called Chappell’s Deerwood facility. Gretrell Marshall works for the Department as a Licensing Counselor. She inspects child care facilities and family daycare homes to ensure they are not operating in violation of Department standards. She has worked for the Department for two years. Ms. Marshall’s previous experience includes operating a family daycare home for two years, and seven years as the owner and director of a licensed child care facility in Jacksonville. She has worked as an infant and toddler development specialist and holds a bachelor's degree in psychology. On October 10, 2019, Ms. Marshall went to Chappell to investigate a parent’s complaint that a child at the facility was repeatedly biting other children. The Department’s rules require child care facilities to document all accidents and incidents that occur while a child is in the care of program staff. The incident reports must be completed on the same day the incident occurs. The documentation of the incident must be shared with the child’s parent or guardian on the day the incident occurs. Chappell’s “accident/incident report” form contained spaces for the name and age of the child, the names of the teachers and other adults present, and the date and time of the incident. It had multiple choice check- boxes for location (classroom, playground, bathroom, cafeteria, or “other”); markings (abrasion, bite, bruise, bump, cut/tear, fracture, puncture, red mark, rug burn, scratch, sprain, or “other”); appendage (a list of 26 body parts); and first aid given (irrigate, antibacterial soap, bandage, ice pack, splint, or “other”). The form also included space for a narrative description of the accident or incident, and whether the parent was called. Ms. Marshall found several accident/incident reports that student E.W., a two-year-old boy, bit other children and a teacher between August 21 and October 4, 2019. On August 21, 2019, E.W. bit another student in the back while jostling for position in a line. The skin was not broken and the bite did not require first aid. Chappell recorded that the bite left bite marks. An August 27, 2019, incident report described two biting incidents on the same day. First, E.W. bit another student “just because” and pulled another student’s hair. Then, E.W. indicated to the teacher that he had to use the bathroom. The teacher took him to the bathroom but the child just ate toilet paper and urinated on himself. When the teacher tried to change his diaper, E.W. bit and kicked the teacher. For the August 27, 2019, incident, Chappell’s accident/incident report form left blank the first aid treatment space. The report noted the bites left bite marks. On September 11, 2019, E.W. bit another child in the back. Chappell’s accident/incident report recorded that first aid was administered, but did not specify the form of treatment. The report noted that the bites resulted in bite marks. Chappell reported that two biting incidents occurred on September 30, 2019. E.W. bit another student on the back during circle time. Later, when the students went outside to play, E.W. bit another child on the back without provocation. The teacher talked to him about being gentle with friends. The accident/incident report left blank the space for reporting first aid. On October 2, 2019, E.W. bit another student in the back. A different form, called a “behavior incident report,” was used by Chappell to record this incident. This form did not contain the check-boxes of the accident/incident report but simply provided space for a narrative “description of behavior incident.” The narrative stated that E.W. and other students were on the castle playhouse in the playground when E.W., “unprovoked,” bit another student on the back. Chappell did not record whether this bite left marks or required first aid. On October 4, 2019, at 12:40 p.m., E.W. bit another student on the right shoulder during play time in their classroom. The accident/incident report recorded that the bite left a bite mark. The space on the form to indicate whether the bite required first aid was left blank. A separate accident/incident report completed on October 4, 2019, documented that E.W. bit another student at 3:15 p.m., while the children were lining up at the door of the classroom. The report did not indicate whether there were bite marks or whether first aid was required. Chappell intended to suspend E.W. for one day on October 4, 2019. The school phoned the parents but was unable to get anyone to come in and pick up E.W. Therefore, the suspension was enforced on the next school day, October 7, 2019. The school warned the parents that another biting incident would result in the child’s permanent removal from Chappell. On October 23, 2019, E.W. bit another child at the school. Chappell expelled E.W. Nancy Dreicer, the Chief Executive Officer of Chappell, testified that there is a societal problem with small children being suspended and expelled from childcare centers. She stated that more children are expelled from child care centers in the United States than are expelled from grade schools and high schools. Ms. Dreicer testified that disciplinary expulsions were problematic for multiple reasons. Behaviors such as biting are common among two year olds, but a child that age learns nothing from being suspended or expelled from school. The parents are forced to find another child care facility and whatever behavioral issue is causing the child’s misbehavior is not addressed. The problem is merely pushed off onto a new child care facility. Ms. Dreicer testified that in 2019, Chappell received a grant from Hope Haven Children’s Hospital and the Community Foundation of Jacksonville to have a behavioral psychologist at the Deerwood facility to work with the children and to train the teachers in dealing with behavior problems. The psychologist worked with E.W., observing the child in the classroom, tracking the timing of his misbehavior, and looking for triggers to his actions. He worked with the teachers on how to identify triggers. Ms. Dreicer pointed out that suspending the child would have meant that the psychologist could not observe him. She noted that nothing approaching a serious injury had occurred, and added that the school would not have kept E.W. in the classroom if there was any possibility of his being a danger to the other students. She believed that E.W.’s behavior was improving, but that biting is such a natural part of a two year old’s development that it was very difficult to stop it completely. The Department has adopted a Child Care Facility Handbook (the “Handbook”), intended to be used on conjunction with sections 402.26 through 402.319. The Handbook has been adopted by reference in Florida Administrative Code Rule 65C-22.001(6).1 The Introduction to the Handbook states, “To protect the health and welfare of children, it is the intent of the Legislature to develop a regulatory framework that promotes the growth and stability of the child care industry and facilitates the safe physical, intellectual, motor, and social development of the child.” Section 2.8 of the Handbook, titled “Child Discipline,” provides, in relevant part: The child care facility shall adopt a discipline policy consistent with Section 402.305(12), F.S., including standards that prohibit children from 1 The cited rule references the May 2019 edition of the Handbook. However, the version of the Handbook provided on the Department’s website and through the hyperlink provided in the rule as published in the Florida Administrative Register is dated December 2019. To further complicate matters, the version of the Handbook introduced at the hearing was dated October 2017. The October 2017 and December 2019 editions are identical in all respects relevant to the determination in this proceeding, which leads to the inference that the May 2019 edition is likewise identical. being subjected to discipline which is severe, humiliating, frightening, or associated with food, rest, or toileting. Spanking or any other form of physical punishment is prohibited. The child care facility operators, employees, and volunteers must comply with written disciplinary and expulsion policies. Verification that the child care facility has provided the parent or guardian a written copy of the disciplinary and expulsion policies used by the program must be documented on the enrollment form with the signature of the custodial parent or legal guardian. * * * E. A copy of the current[2] disciplinary and expulsion policies must be available for review by the parents or legal guardian and the licensing authority. Providers must have a comprehensive discipline policy that includes developmentally appropriate social-emotional and behavioral health promotion practices, as well as discipline and intervention procedures that provide specific guidance on what child care personnel should do to prevent and respond to challenging behaviors. Preventive and discipline practices should be used as learning opportunities to guide children’s appropriate behavioral development …. (emphasis added). Pursuant to section 2.8.A of the Handbook, Chappell has adopted and implemented a discipline policy, titled “Child Management Behavior Protocol.” Chappell’s policy sets forth the following mission statement: Chappell recognizes the importance of promoting acceptable behavior and methods of discipline within the child care setting. We believe that all 2 The word “current” is not in the October 2017 edition of the Handbook. This is the only relevant difference between section 2.8 in the October 2017 Handbook and section 2.8 in the December 2019 edition of the Handbook children have the right to expect positive approaches to discipline, which foster self-esteem, respect, tolerance and self-control. Behaviors which injure people either emotionally or physically or damage property are real problems to adults/staff and the other children. These behaviors must be dealt with in an appropriate manner. After setting forth a catalogue of acceptable and unacceptable methods of discipline to be applied in specific instances of misbehavior, the Chappell discipline policy next stated the process to be followed “In The Case of Persistent Inappropriate Behavior” as follows, in relevant part: The child’s parents/caregivers will be involved at first hit, kick, thrown toy, etc. The Director will discuss the situation with the parents/caregivers in an attempt to find the possible cause of the behavior. The Director and the parents/caregivers will together develop strategies for dealing with the unwanted behavior, which could be implemented at home. Should it be necessary and with the consent of the parent/caregiver, advice and assistance will be sought from relevant external specialists to address the matter. After two incidences in one week, which caused or could have caused injury to self or others, the child will be suspended for one day, and after five such incidences the child will be suspended for a week. However, if the Director at any time feels the behavior is extreme and dangerous to other children or teachers, the child will be removed from the Center. This may be a temporary or permanent expulsion…. There was no question that the Chappell discipline policy meets the requirements of the Handbook. The Class II violation alleged by the Department is that Chappell failed to follow its own discipline policy in the case of E.W., thereby violating section 2.8.B of the Handbook, which requires child care facilities to “comply with written disciplinary and expulsion policies.” The Department points out that the Chappell discipline policy specifies that after two incidences in one week that “caused or could have caused injury,” the child will be suspended for one day, and that five such instances will result in one week’s suspension. The Chappell policy gives the Director discretion to remove a child for extreme or dangerous behavior. The Department notes that the policy does not give the Director discretion to waive the stated discipline schedule. Ms. Marshall calculated that under Chappell’s written policy, E.W. should have been suspended for one day after the two biting incidents on August 27, 2019, and again following the two biting incidents on September 30, 2019. Chappell did not suspend E.W. on either occasion. Ms. Marshall calculated that in the space of the five days between September 30 and October 4, 2019, E.W. was involved in five biting incidents. Ms. Marshall testified that, under Chappell’s policy, E.W. should have been suspended for one week. Chappell gave E.W. a one-day suspension on October 7, 2019. Ms. Dreicer conceded in the abstract that biting is an act that could cause injury to another child. She did not concede that E.W.’s biting was injurious or threatened actual injury to the other children at the child care facility. It was a developmental behavior issue that the facility’s staff and a psychologist were attempting to correct. Chappell ultimately decided that it had to expel the child, but only after making every effort to correct the biting behavior. Chappell argued that neither the Department’s Handbook nor Chappell’s policy defines the term “injury.” Ms. Marshall believed that a bite is always an injury. It leaves a mark, however temporary, and requires some treatment. Chappell noted that none of the bites recorded in its accident/incident reports broke the skin of the other child or required treatment of any kind. Ms. Dreicer and the staff of the Deerwood facility made a determination that E.W.’s behavior presented no danger of injury to the other children. Chappell argues that, whatever the literal language of the written policy, the director of a child care facility must be allowed to exercise discretion on a case-by-case basis in making disciplinary decisions. Chappell points to section 2.8.E of the Handbook, with its admonitions that a comprehensive disciplinary policy must be “developmentally appropriate” and that discipline practices “should be used as learning opportunities to guide children’s appropriate behavioral development.” Ms. Dreicer forcefully made the case that suspending or expelling a two year old teaches nothing and abdicates the facility’s responsibility to the child. Neither party appeared to take note of another section of the Chappell disciplinary policy. The undersigned observes that, while the language of the Chappell policy quoted above appears to prescribe a rigid disciplinary process admitting no exceptions, another portion of the policy gives Chappell discretion as to when the disciplinary process commences: After an incident, our first step: We will tend to the injured child to see if medical attention is needed. We will give the child who hit, kicked, etc. an opportunity to apologize and provide comfort. We will notify both sets of parents and prepare an incident report (Attachment 1). DCF requires the report be signed by a parent or caregiver the day of the incident. If behaviors persist, Chappell will follow the process management flow chart. (Attachment 2)[3] (emphasis added). 3 The referenced attachments were not part of the record. From the context, the undersigned has inferred that the referenced “flow chart” was a graphic representation of the disciplinary procedure quoted at Finding of Fact 26 above. The underscored language, read together with the title of the discipline policy, “In The Case of Persistent Inappropriate Behavior,” gives Chappell discretion to determine when the child’s behaviors have reached the stage of “persistence” warranting commencement of the disciplinary process. The Department did not account for this discretion in finding that Chappell violated section 2.8.B of the Handbook. Ms. Dreicer’s testimony was consistent with the Chappell disciplinary policy. Though the facility eventually expelled the child, it exercised the discretion afforded by the policy to determine whether the child’s behavior was potentially injurious and whether the behavior was persistent enough to warrant invocation of the disciplinary process. Clear and convincing evidence was not presented that Chappell committed the Class II violation alleged by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of May, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 14th day of May, 2020. COPIES FURNISHED: Nancy Drier Chappell Schools, LLC 8400 Baycenter Road Jacksonville, Florida 32256 Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway Jacksonville, Florida 32231-0083 (eServed) Jesse Nolan Dreicer, Esquire Tassone, Dreiver & Hill 1833 Atlantic Boulevard Jacksonville, Florida 32207 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
