01-003895 Maxine S. E. Torres vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, May 16, 2002.

Summary: Re-licensure denied for family day care home for failure to advise of adult with criminal record in residence and failure to ensure safety of children.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAXINE S. E. TORRES, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3895

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORD ER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on February 18, 2002, in Orlando, Florida.

APPEARANCES

For Petitioner: James Sweeting, III, Esquire

506 West Washington Street

Orlando, Florida 32801

For Respondent: Richard Cato, Esquire

Department of Children and

Family Servic es

400 West Robinson Street

Suite S - 1106

Orlando, Florida 32801 - 1782

STATEMENT OF THE ISSUES

The issues in this case are: (a) Whether Petitioner's

license as a family day care home should be renewed; (b) Whether

Petitioner was required to list her son, Stephen Randall, as a

household member on her annual registration application for a

family day care home for 2000 and 2001; and (c) Whether Stephen

Randall was a member of Petitioner's house hold at any time in

2000 and 2001.

PRELIMINARY STATEMENT

On August 28, 2001, Respondent, Department of Children and

Family Services, notified Petitioner, Maxine S. E. Torres, of a

Denial of Registration of her request to operate a family day

care home. Th e Notice of Denial of Registration advised

Petitioner that the

background screening required pursuant to

licensure or registration has revealed that

you have been the subject of a report to the

central abuse hotline which was subsequently

investigated by the Department of Children

and Families. The facts underlying

confidential abuse reports numbered 2000 -

001833 and 2000 - 098735 demonstrate an

inability to ensure the safety of children

in your care to the level necessary to be

registered as a family day ca re. In

addition, you were notified by this office

in April of 1999 that a particular family

member (Stephen Randall) had been

disqualified from contact with client

children, yet report number 2000 - 001833

referenced above indicates that said family

member was still in the household and

supervising client children. In both your

year 2000 and year 2001 applications, you

have failed to list said family member.

On September 13, 2001, Petitioner requested an

administrative hearing by letter directed to Ro bert R. Moran,

Jr. On October 8, 2001, the Division of Administrative Hearings

received a Request for Administrative Hearing from Respondent.

On October 8, 2001, an Initial Order was sent to both parties.

On November 15, 2001, the case was set for f inal hearing in

Orlando, Florida, on December 24, 2001. On December 19, 2001,

Petitioner's Motion to Continue Final Hearing was granted and

the final hearing was rescheduled for February 4, 2002. On

January 18, 2002, Petitioner filed her Second Motion to Continue

Hearing, which was granted, and the final hearing was

rescheduled for February 18, 2002.

At the final hearing Petitioner presented four witnesses:

Julia Scott, Nifa Randall, Jose Torres, and Maxine Torres.

Petitioner offered six exhibits w hich were admitted into

evidence and marked Exhibits A through C and E through G. No

Exhibit D was offered. Respondent presented six witnesses:

Wendy King, Mimi Posipsil, Melanie Schaefer, Maxine McGregor,

Charlene Groves, and Susan Wojtowicz. Ms. Wojt owicz was also

called as a rebuttal witness. Respondent offered 23 exhibits

which were admitted into evidence and marked Respondent's

Exhibits A through E, F1 through F6, G through M, N1 and N2, and

O through Q.

A Transcript of the proceedings was fi led with the Division

of Administrative Hearings on March 13, 2002; at the final

hearing the parties had requested and were granted 30 days in

which to file proposed recommended orders. On April 12, 2002,

the parties jointly moved to extend the time for f iling proposed

recommended orders and were given until May 3, 2002, at

5:00 p.m., to file their proposed recommended orders.

Petitioner did not file a proposed recommended order.

Respondent's Proposed Recommended Order was filed on May 8,

2002.

FINDINGS OF FACT

Based on the testimony and demeanor of the witnesses and

the documentary evidence presented, the following findings of

fact are made:

1. Petitioner's application for license for a family day

care home dated October 20, 1997, was receive d by Respondent on

November 20, 1997. Listed among the "household members" on the

application was Petitioner's son, Stephen H. Randall, whose date

of birth is March 28, 1981.

2. On January 10, 1998, Petitioner submitted her

application for registrat ion for a family day care home; the

application was received by Respondent on January 14, 1998.

Stephen Randall is also listed as a household member on this

application.

3. On January 15, 1998, Respondent wrote a letter to

Petitioner acknowledging h er desire to withdraw her application

for license as a family day care home.

4. On February 18, 1998, Petitioner was registered as a

family day care home for one year effective February 28, 1998.

The letter advised:

To maintain your registration in

accordance with Section 402.313, Florida

Statutes, you must do the following:

* * *

(3) Send in background screening forms

including fingerprints for household members

who become 18 years of age, or for adults

who move into your home, or w hen your

substitute changes and has not been

screened.

5. On October 26, 1998, Petitioner forwarded a renewal

application for registration as a family day care home which

listed Stephen Randall as a "household member."

6. As a result of a Dece mber 9, 1998, inspection by

Respondent, it was determined that an adult who had not been

screened was living in the registered day care home and,

therefore, Petitioner was notified that screening was to be

accomplished "ASAP."

7. On January 12, 1999, Respondent sent Petitioner a

Certified Letter reminding her that "Adult members residing in

the family day care home must go through a background screening

process in accordance with Florida Statutes, . . . ."

8. On January 28, 1999, Petitioner tel ephoned Respondent

indicating that she "changed her mind about daycare." This

telephone call was followed by a letter from Respondent to

Petitioner dated January 29, 1999, indicating, "Per your request

January 28, 1999, we have withdrawn your Family Day C are license

application and closed your registration effective this date."

9. On April 9, 1999, Petitioner submitted an original

registration application which listed her 18 - year - old son,

Stephen Randall, as living in the home which was to become the

registered family day care home.

10. On July 6, 1999, Petitioner, by letter, advised

Respondent that "My son Stephen H. Randall is no longer living

with me (Maxine Torres)."

11. On July 20, 1999, Respondent mailed Petitioner a

letter advising that "The Department of Children & Family

Services has registered your Family Day Care Home for one year

effective July 30, 1999." The letter also advised Petitioner of

the necessity of advising Respondent when unscreened adults move

into the home in the same language as contained in paragraph 4,

supra .

12. On September 23, 1999, Respondent sent Petitioner a

Certified Letter which stated:

We have received your letter dated July 7,

1999 in reference to your son, Stephen

Randale [sic], moving out of your home.

Should he return, he must be background

screened within ten (10) days.

Please remember that all household members

must be screened in accordance with F.S.

Section 202.303 and 402.305. Failure to do

so in a timely manner may result in

admin istrative action, which could result in

a fine, suspension, or revocation.

13. On October 31, 2000, the Circuit Court in and for

Orange County, Florida, in Case Number CR - O - 00 - 4737/A

adjudicated Stephen Henry Randall, Petitioner's son, guilty of

vio lating the following criminal statutes: Subsections

806.13(1)(b)1, 810.02(3), and 812.014(2)(c)5, Florida Statutes,

two of which offenses are felonies, and sentenced him to one day

in jail and three years' probation. Stephen Randall had been

arrested in April 2000 for the criminal offenses he committed.

The offenses occurred at a residence two residences away from

Petitioner's home, the registered family day care home.

14. Petitioner submitted an application for re - licensure

dated May 14, 2000, in which she was required to disclose the

name of "everyone who lives in your home." By signing the

application, Petitioner attested that the information on the

application was "truthful, correct, and complete." Stephen

Randall was not listed as living or resid ing at Petitioner's

home.

15. Respondent's investigators and independent witnesses

presented credible testimony indicating that Stephen Randall was

residing in Petitioner's residence (the registered day care home)

during the calendar year 2000. In particular, an abuse report of

an incident in January 2000, indicates that Petitioner reported

that she "left her teenage son in the home" purportedly to

supervise the children left in Petitioner's care; in June 2000,

Petitioner again told an investigator, that if she wasn't there

her son, Stephen Randall, her daughter or husband watch the

children. In addition, independent witnesses, whose children

were at the day care home, reported repeatedly seeing Stephen

Randall there.

16. Stephen Randall was living in the residence of

Petitioner, which was a registered day care home, during the

calendar year 2000 and had not been screened as required by

Florida Statutes because Petitioner did not advise Respondent

that he had returned and was residing in the home.

17. Respondent investigated two Florida Protective

Services abuse hotline complaints against Petitioner and

determined the complaints to be well - founded. In both

instances, Petitioner failed to properly supervise children left

in her care and , as a result, failed to ensure the safety of the

children.

18. Independent witnesses confirmed the abuse hotline

complaints and presented other complaints, all confirming that

Petitioner failed to properly supervise children left in her

care and failed to ensure their safety.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of these

proceedings. Subsection 120.57(1), Florida Statutes.

20. The burden of proof is upon Respo ndent to adduce

evidence to support the denial of the renewal of Petitioner's

application for re - licensure. Dubin v. Department of Business

Regulation , 262 So. 2d 273 (Fla. 1st DCA 1972). To meet its

burden, Respondent must establish facts upon which its

allegations are based by clear and convincing evidence.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern Company , 670 So. 2d 932, 933

(Fla. 1996); Coke v. Department of Children and Family Services ,

704 S o. 2d 726 (Fla. 5th DCA 1998); and Subsection 120.57(1)(j),

Florida Statutes.

21. Section 402.310, Florida Statutes, authorizes the

Department of Children and Family Services to deny a license for

the violation of any provision of Sections 402.301 t hrough

402.319, Florida Statutes, or rules adopted thereunder.

22. Section 402.313, Florida Statutes, sets licensing

standards for the family day care homes.

23. Subsection 402.313(1)(a)5, Florida Statutes, provides

as follows:

(1) Family day car e homes shall be

licensed under this act if they are

presently being licensed under an existing

county licensing ordinance, if they are

participating in the subsidized child care

program, or if the board of county

commissioners passes a resolution that

fam ily day care homes be licensed. If no

county authority exists for the licensing of

a family day care home, the department shall

have the authority to license family day

care homes under contract for the purchase -

of - service system in the subsidized care

pr ogram

(a) If not subject to license, family day

care homes shall register annually with the

department, providing the following

information:

* * *

5. Proof of screening and background

checks.

24. Subsection 402.313(3), Florida Statutes, provides, as

follows:

Child care personnel in family day care

homes shall be subject to the applicable

screening provisions contained in ss.

402.305(2) and 402.3055. For purposes of

screening in family day care homes, the term

includes any member over the age of 12 years

of a family day care home operator's family,

or persons over the age of 12 years residing

with the operator in the family day care

home. Members of the operator's family, or

persons residing with the operator, who are

between the ages of 12 years and 18 years

shall not be required to be fingerprinted,

but shall be screened for delinquency

records.

25. Subsection 402.305(2), Florida Statutes, sets forth the

minimum standards for child care personnel in a day care center.

In par ticular, Subsection 402.305(2)(a), Florida Statutes,

states:

(2) PERSONNEL. -- Minimum standards for

child care personnel shall include minimum

requirements as to:

(a) Good moral character based upon

screening. This screening shall be

conducted as pr ovides in Chapter 435, using

level 2 standards for screening set forth in

that chapter.

26. Subsection 435.04(1), Florida Statutes, "Level 2

screening standards" provides:

All employees in positions designated by

law as positions of trust or responsib ility

shall be required to undergo security

background investigations as a condition of

employment and continued employment. For

the purposes of this subsection, security

background investigations shall include, but

not be limited to, fingerprinting for a ll

purposes and checks in this subsection,

statewide criminal and juvenile records

checks through the Florida Department of Law

Enforcement, and federal criminal records

checks through the Federal Bureau of

Investigation, and may include local

criminal re cords checks through local law

enforcement agencies.

27. Subsection 435.04(2)(w), Florida Statutes, "Level 2

Screening standards" provides:

(2) The security background

investigations under this section must

ensure that the no person subject to the

pr ovisions of this section have been found

guilty of, regardless of adjudication, or

entered a plea of nolo contendere or guilty

to, any offense prohibited under any of the

following provisions of the Florida Statutes

or under any similar statute of another

jurisdiction:

* * *

(w) Chapter 812, relating to theft,

robbery, and related crimes, if the offense

is a felony.

28. Subsections 39.201(4) and (6), Florida Statutes,

provide, in pertinent part, as follows:

(4) The department shall es tablish and

maintain a central abuse hotline to receive

all reports made pursuant to this section in

writing or through a single statewide toll -

free telephone number, which any person may

use to report known or suspected child abuse

abandonment, or neglect . . . .

* * *

(6) Information in the central abuse

hotline may not be used for employment

screening, except as provided in s.

39.202(2)(a) and (h). Information in the

central abuse hotline and the department's

automated abuse information sys tem may be

used by the department, its authorized

agents, or contract providers, the

Department of Health, or county agencies as

part of the licensure or registration

process pursuant to ss. 402.301 - 402.319 and

ss. 409.175 - 409.176.

29. Subsections 39.20 2(1), (2)(a)4 and (j), Florida

Statutes, provide as follows:

(1) In order to protect the rights of the

child and the child's parents or other

persons responsible for the child's welfare,

all records held by the department

concerning reports of child aba ndonment,

abuse, or neglect, including reports made to

the central abuse hotline and all records

generated as a result of such reports, shall

be confidential and exempt from the

provisions of s. 119.07(1) and shall not be

disclosed except as specifically a uthorized

by this chapter. Such exemption from s.

119.07(1) applies to information in the

possession of those entities granted access

as set forth in this section.

(2) Access to such records, excluding the

name of the reporter which shall be released

only as provided in subsection (4), shall be

granted only to the following persons,

officials, and agencies:

(a) Employees, authorized agents, or

contract providers of the department, the

Department of Health, or county agencies

responsible for carryin g out:

* * *

4. Licensure or approval of adoptive

homes, foster homes, or child care

facilities, or family day care homes or

informal child care providers who receive

subsidized child care funding, or other

homes used to provide for the care and

welfare of children.

* * *

(j) The Division of Administrative

Hearings for purposes of any administrative

challenge.

30. Rule 65C - 20.009, Florida Administrative Code, States,

in part:

* * *

(3) Supervision by Staff.

(a) At all times, which includes when the

children are sleeping, the operator shall

remain responsible for the supervision of

the children in care and capable of

responding to the emergencies and needs of

the children. During the daytime hours of

opera tion, children shall have adult

supervision which means watching and

directing children's activities, both

indoors and outdoors, and responding to each

child's needs.

31. Credible testimony established that Stephen Randall

resided in Petitioner's ho me during some or all of calendar year

2000. During this period of time, Petitioner continued to

operate her family day care home and did not inform Respondent

that her son resided there.

32. As a household member residing in Petitioner's home,

Stephen R andall was subject to background screening. As Stephen

Randall had been adjudicated guilty of a third degree felony

listed in Subsection 435.04(2), Florida Statutes, his living at

Petitioner's home could disqualify Petitioner from operating a

registered f amily day care home. In addition, Petitioner's

failure to submit Stephen Randall for background screening within

ten (10) days of his return to residence in the family day care

home could be the basis for registration denial or revocation.

33. Petition er knew that she was required to notify

Respondent of the identity of all household members, including

her son, Stephen Randall, so they could be properly screened.

Petitioner failed to advise Respondent of her son's return and

residence in her home.

34. Respondent is authorized to use the information in the

abuse hotline and automated abuse information system in the

registration process for family day care home facilities, which

would imply, since the denial of registration is part of the

registration pro cess, the authority to use such information to

deny the registration of a family day care home. Subsections

39.201(6) and 39.202(2)(a), Florida Statutes. When Respondent

attempts to use the allegations contained in those abuse

reporting systems to deny a family day care home registration,

it must prove those allegations by clear and convincing

evidence. In the instant case, Respondent has, through

documentary evidence and the testimony of its investigators and

independent witnesses, proved by clear and c onvincing evidence

that Petitioner failed to meet minimum standards of care to

ensure the safety of children in her care.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Children and Family

Services deny Petitioner's application for re - licensure of her

family day care home.

DONE AND ENTERED this 16th day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Divis ion 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 16th day of May, 2002.

COPIES FURNISHED :

Richard Cato, Esquire

Department of Children and Family Services

400 West Robinson Street

Suite S - 1106

Orlando, Florida 32801 - 1782

James Sweeting, III, Esquire

506 West Washington Street

Orlando, Florida 3280 1

Paul Flounlacker, Agency Clerk

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and Family Services

1317 Winewood Boulevard

Bu ilding 2, Room 204

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be f iled with the

agency that will issue the final order in this case.