02-001224 Kimberly Strange-Bennett vs. Department Of Children And Family Services
 Status: Closed
Recommended Order on Friday, July 12, 2002.


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Summary: Respondent should issue license to Petitioner to operate a family day care home. Petitioner has never abused her own children or the children of other parents.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8KIMBERLY STRANGE - BENNETT, )

13)

14Petitioner, )

16)

17vs. ) Case No. 02 - 1224

24)

25DEPARTMENT OF CHILDREN AND )

30FAMILY SERVICES, )

33)

34Respondent. )

36)

37RECOMMENDE D ORDER

40A final hearing was conducted in this case on May 23, 2002,

52in Ocala, Florida, before Suzanne F. Hood, Administrative Law

61Judge with the Division of Administrative Hearings.

68APPEARANCES

69For Petitioner: Kimberly Strange - Bennett, pro se

77Post Office Box 58

81Orange Lake, Florida 32681

85For Respondent: Ralph J. McMurphy, Esquire

91Department of Children and

95Family Services

971601 West Gulf Atlantic Highway

102Wildwood, Florida 34785

105STATEMENT OF THE ISSUE

109The issue is whether Respondent should approve Petitioner’s

117application for a family day care home license.

125PRELIMINARY STATEMENT

127By letter dated February 6, 2002, Respondent Department of

136Children and Family Services (Respondent) advised Petitioner

143Kimberly Strange - Bennett (Petitioner) that her application for a

153license to operate a family day care home was denied. The

164letter stated that the denial was based on a confirmed Florida

175Abuse Hotline Inf ormation System report (abuse report). The

184letter also advised Petitioner to cease and desist operation of

194her family day care home, First Step Learning Center, until such

205time as Petitioner procures a license from Respondent.

213Petitioner requested an admi nistrative hearing to contest

221the denial of her licensure application in a letter dated

231February 14, 2002. Respondent received Petitioner’s letter on

239February 20, 2002.

242By letter dated March 14, 2002, Respondent provided

250Petitioner with the details of the charges in the abuse report.

261The letter stated that the abuse report was based on a hotline

273complaint that Petitioner had used excessive corporal punishment

281on her stepchildren. According to the letter, Petitioner

289admitted during the ensuing investigatio n that she had

298administered corporal punishment, bruising and disfiguring the

305children. The letter states that Petitioner and her husband

314admitted to using physical discipline on the children.

322On March 22, 2002, Respondent referred the case to the

332Divisio n of Administrative Hearings. Subsequently, the Division

340of Administrative Hearings issued an Initial Order on March 25,

3502002.

351Petitioner filed a response to the Initial Order on

360April 1, 2002. Respondent filed its response on April 2, 2002.

371Based on these responses, Administrative Law Judge P. Michael

380Ruff issued a Notice of Hearing dated April 12, 2002. The

391Notice of Hearing scheduled the hearing for May 23, 2002.

401On May 21, 2002, Respondent filed a Motion for Continuance.

411The motion alleged that the appearance of Respondent’s counsel

420in the instant case conflicted with his appearance in another

430case that was scheduled for the same date and time at a

442different location. That same day, the Division of

450Administrative Hearings transferred the case to the undersigned.

458An Amended Notice of Hearing dated May 21, 2002, changed

468the time and location of the hearing to eliminate any scheduling

479conflict with another case. Accordingly, Respondent’s Motion

486for Continuance was denied by Order dated May 22, 20 02.

497During the hearing, Petitioner testified on her own behalf

506and presented the testimony of two witnesses. Petitioner

514offered one composite exhibit consisting of three written

522hearsay statements that were excluded for lack of

530authentication.

531Responden t presented the testimony of two witnesses.

539Respondent offered the above - referenced abuse report as its only

550exhibit. The abuse report is not admissible as an exception to

561the rule against hearsay pursuant to Section 90.803(8), Florida

570Statutes, relating to public records and reports. Additionally,

578Sections 39.202(2)(a) and 39.202(2)(j), Florida Statutes, do not

586create an exception to the rule against hearsay so as to allow

598the undersigned to rely on the hearsay within hearsay contained

608in the report to establish the facts of the instant case.

619However, the abuse report is admissible under the limited

628circumstances set forth in Section 120.57(1)(c), Florida

635Statutes.

636The parties did not file a transcript of the proceeding.

646On June 12, 2002, Petitioner filed an unopposed Motion for

656Extension of Time. On June 17, 2002, the undersigned issued an

667Order extending the time for the parties to file their proposed

678recommended order.

680Petitioner filed a Proposed Recommended Order on June 21,

6892002. Respondent f iled a Proposed Recommended Order on June 22,

7002002.

701FINDINGS OF FACT

7041. In 1996, Petitioner lived with her husband, their

713newborn child, three of her husband's children from a former

723marriage, and two of her children from a former marriage.

733Petitioner' s stepchildren were: (a) I.M.B., a 15 - year - old male;

746(b) S.J.B., a 14 - year - old male; and (c) S.Y.B., a 13 - year - old

764female. Petitioner's children by her former marriage were:

772(a) R.D.F., a six - year - old male; and (b) D.F., a five - year - old

790female.

7912. At the end of the school year in 1996, Petitioner

802spanked her stepdaughter for reasons related to her school work.

812She also spanked her stepsons for school - related reasons.

822However, the physical punishment of the stepchildren by

830Petitioner was not excess ive. There is no competent evidence

840that Petitioner beat the stepchildren leaving bruises, scars, or

849other disfigurement.

8513. Petitioner's husband spanked his children at times,

859using a switch or an extension cord. After one such occasion,

870Petitioner' s stepdaughter asked for some rubbing alcohol to

879treat a bruise. Petitioner has no first - hand knowledge about

890the bruise. There is no persuasive evidence that Petitioner's

899husband ever disciplined his children so severely as to scar or

910disfigure them.

9124. Since 1996, Petitioner completed her training as a

921licensed practical nurse. She continues to work part - time in

932that capacity. Petitioner has also earned money babysitting for

941other parents. Petitioner has never used corporal punishment of

950any kind to discipline other people's children.

9575. Petitioner has completed all necessary training to

965operate a family day care home. She knows that corporal

975punishment is not an acceptable way to discipline children in a

986day care facility. She understands th at when children do not

997behave appropriately, she may do one of the following: (a) talk

1008to the child; (b) place the child in time - out for one minute per

1023year of age; or (c) call the child's parent.

10326. Petitioner currently lives with her husband, their son,

1041and Petitioner's children from her former marriage.

1048Petitioner's stepdaughter also lives with Petitioner.

1054Petitioner's stepdaughter is 18 years of age and will be

1064available to serve as a substitute caretaker if Petitioner is

1074licensed to operate a f amily day care home facility.

10847. One of Petitioner's stepsons, I.M.B., is deceased. The

1093other stepson, S.J.B., is in jail. S.J.B.'s son lives with

1103Petitioner.

1104CONCLUSIONS OF LAW

11078. The Division of Administrative Hearings has

1114jurisdiction over the pa rties and the subject matter of this

1125proceeding. Sections 120.569, 120.57(1), and 402.310(2),

1131Florida Statutes.

11339. Petitioner has the burden of proving that she is

1143entitled to a license to operate a family day care home

1154facility. Florida Department of T ransportation v. J. W. C.

1164Company , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

1175Department of Health and Rehabilitative Services , 348 So. 2d 349

1185(Fla. 1st DCA 1977).

118910. Respondent has authority to issue a license to operate

1199a child care facility "upon r eceipt of the license fee and upon

1212being satisfied that all standards required by ss. 402.301 -

1222402.319 have been met." Section 402.308(3)(d), Florida

1229Statutes.

123011. Section 402.305(12), Florida Statutes, provides as

1237follows in pertinent part:

1241(2) PE RSONNEL. -- Minimum standards for

1248child care personnel shall include minimum

1254requirements as to:

1257(a) Good moral character based upon

1263screening. This screening shall be

1268conducted as provided in chapter 435, using

1275the level 2 standards for screening set

1282fo rth in that chapter.

128712. Section 435.04, Florida Statutes, sets forth the

1295Level 2 screening standards. This statute does not include

1304having a confirmed Florida Protective Service System (FPSS)

1312abuse report as a disqualifying offense.

131813. Section 39.202(2)(a)4., Florida Statutes, allows

1324Respondent's employees to have access to FPSS abuse reports if

1334they are responsible for licensure or approval of child care

1344facilities. The statute provides Respondent with an opportunity

1352to consider abuse reports in deciding whether to license a

1362family day care home facility.

136714. Similarly, Section 39.202(2)(j), Florida Statutes,

1373allows the Division of Administrative Hearings to have access to

1383the reports for purposes of any administrative challenge.

1391However, t he statute does not provide authority for an

1401Administrative Law Judge to treat such reports as sufficient in

1411themselves to support findings of fact. Section 120.57(1)(c),

1419Florida Statutes.

142115. Section 39.01(2), Florida Statutes, states as follows:

1429(2) "Abuse" means any willful act or

1436threatened act that results in any physical,

1443mental, or sexual injury or harm that causes

1451or is likely to cause the child's physical,

1459mental, or emotional health to be

1465significantly impaired. Abuse of a child

1471includes acts or omissions. Corporal

1476discipline of a child by a parent or legal

1485custodian for disciplinary purposes does not

1491in itself constitute abuse when it does not

1499result in harm to the child.

150516. Petitioner and her husband occasionally disciplined

1512their children by spanking them. There is no persuasive

1521evidence that either one of them ever abused their children or

1532anyone else's children. Petitioner has met her burden of

1541proving that she is entitled to a license to operate a family

1553day care home.

1556RECO MMENDATION

1558Based on the foregoing Findings of Fact and Conclusions of

1568Law, it is

1571RECOMMENDED:

1572That Respondent enter a final order granting Petitioner a

1581license to operate a family day care home.

1589DONE AND ENTERED this 12th day of July, 2002, in

1599Tallahas see, Leon County, Florida.

1604___________________________________

1605SUZANNE F. HOOD

1608Administrative Law Judge

1611Division of Administrative Hearings

1615The DeSoto Building

16181230 Apalachee Parkway

1621Tallahassee, Florida 32399 - 3060

1626(850) 488 - 9675 SUNCOM 278 - 9675

1634Fax Fil ing (850) 921 - 6847

1641www.doah.state.fl.us

1642Filed with the Clerk of the

1648Division of Administrative Hearings

1652this 12th day of July, 2002.

1658COPIES FURNISHED :

1661Ralph J. McMurphy, Esquire

1665Department of Children and

1669Family Services

16711601 West Gulf Atlantic Highw ay

1677Wildwood, Florida 34785

1680Kimberly Strange - Bennett

1684Post Office Box 58

1688Orange Lake, Florida 32681

1692Paul F. Flounlacker, Jr., Agency Clerk

1698Department of Children and

1702Family Services

17041317 Winewood Boulevard

1707Building 2, Room 204B

1711Tallahassee, Florida 32399 - 0700

1716Josie Tomayo, General Counsel

1720Department of Children and

1724Family Services

17261317 Winewood Boulevard

1729Building 2, Room 204

1733Tallahassee, Florida 32399 - 0700

1738NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1744All parties have the right to submit written excep tions within

175515 days from the date of this Recommended Order. Any exceptions

1766to this Recommended Order should be filed with the agency that

1777will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/04/2002
Proceedings: Final Order filed.
PDF:
Date: 09/27/2002
Proceedings: Agency Final Order
PDF:
Date: 07/12/2002
Proceedings: Recommended Order
PDF:
Date: 07/12/2002
Proceedings: Recommended Order issued (hearing held May 23, 2002) CASE CLOSED.
PDF:
Date: 07/12/2002
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 06/24/2002
Proceedings: Proposed Recommended Order (filed by Petitioner via facsimile).
PDF:
Date: 06/21/2002
Proceedings: Respondent`s Proposed Findings and Conclusions (filed via facsimile).
PDF:
Date: 06/17/2002
Proceedings: Order issued. (motion is granted; proposed final orders shall be due by June 21, 2002)
PDF:
Date: 06/12/2002
Proceedings: Motion for Extension of Time (filed by Respondent via facsimile).
Date: 05/23/2002
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 05/22/2002
Proceedings: Order Denying Continuance issued.
PDF:
Date: 05/21/2002
Proceedings: Amended Notice of Hearing issued. (hearing set for May 23, 2002; 2:00 p.m.; Ocala, FL, amended as to time and location).
PDF:
Date: 05/21/2002
Proceedings: Motion for Continuance (filed by Respondent via facsimile).
PDF:
Date: 04/12/2002
Proceedings: Notice of Hearing issued (hearing set for May 23, 2002; 10:30 a.m.; Ocala, FL).
PDF:
Date: 04/02/2002
Proceedings: Respondent`s Response to Initial Order (filed via facsimile).
PDF:
Date: 04/01/2002
Proceedings: Letter to Judge Ruff from K. Bennett in reply to Initial Order (filed via facsimile).
PDF:
Date: 03/25/2002
Proceedings: Initial Order issued.
PDF:
Date: 03/22/2002
Proceedings: Supplement to Letter of Denial of Daycare License filed.
PDF:
Date: 03/22/2002
Proceedings: Notice of Denial of License filed.
PDF:
Date: 03/22/2002
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 03/22/2002
Proceedings: Notice filed.

Case Information

Judge:
SUZANNE F. HOOD
Date Filed:
03/22/2002
Date Assignment:
05/21/2002
Last Docket Entry:
10/04/2002
Location:
Ocala, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (11):