03-000291 Young America Homestead Daycare Center vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, June 30, 2003.

Summary: Child care center fined $1,000 for negligent supervision of a two-year-old resulting in a fractured shin, as well as record-keeping and ratio violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOUNG AMERICAN DAYCARE CENTER, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0075

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_______________________________)

YOUNG AMERICAN HOMESTEAD )

DAYCARE CENTER, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0291

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case on

April 8, 2003, by video teleconference at sites in Miami and

Tallahassee, Florida, before Florence Snyder Rivas, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Bianca Rodriguez, pro se

Juanita Ramirez, pro se

Young American Day Care Center

1905 West 35th Street, No. 120

Hialeah, Florida 33012

For Respondent: Rosemarie Rinaldi, Esquire

Department of Children and

Family Services

401 Northwest 2nd Avenue, Suite N - 1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether the Petitioner committed a violation of minimum

child care standards, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By le tters dated September 30, 2002, and October 3, 2002,

the Department of Children and Family Services (the Department

or DCFS) served notice of its intention to impose civil

penalties totaling $1,000.00 on Petitioner Young American Day

Care Center (Petition er or Young American) for violation of

state law governing minimum child care standards at its day care

facilities located in Hialeah and Homestead, respectively.

More specifically, DCFS alleged that Young American had

negligently supervised a two - year - o ld in care at its Hialeah

facility, and had failed to adequately report and document an

injury to that child, and, further, had violated state mandated

requirements governing the ratio of child care workers to

children in care.

Petitioner timely requested a hearing to contest the

charges.

At the video teleconference on April 8, 2003, Petitioner

presented the testimony of Blanca Rodriguez and Juanita Ramirez.

The Department presented the testimony of Dr. Walter Lambert,

L.F. and O.F., Belkis Molina, Cassale e Eccles, and Benjamin

Diaz, and offered five exhibits, which were accepted into

evidence .

At the conclusion of the evidentiary portion of the

hearing, the parties were given ten days from the date of the

filing of the transcript to file proposed recommend ed orders.

The transcript was filed on May 27, 2003, and the Department

thereafter timely requested an enlargement of time to file its

proposed recommended order. The deadline was extended to

June 16, 2003, and the Department timely filed. No submission

was made on behalf of Petitioner.

FINDINGS OF FACT

1. On the morning of March 19, 2002, B.F., then age two,

was in the care of Petitioner's Hialeah day care center. There

she sustained a non - displaced spiral tibia fracture on her left

leg.

2. The tibi a is the bone which bears the majority of the

weight of the lower leg. The fracture sustained by B.F. was of

sufficient magnitude that she was unable to bear weight on her

lower leg, and therefore was unable to stand, walk, or run.

Such fractures are pai nful. They are expected to, and in this

case did, render the child tearful to the point of

inconsolability.

3. A fracture of the kind B.F. suffered is also known as a

"toddler's fracture." When such a fracture is found in a non -

ambulatory child, the pro bability is that it was intentionally

inflicted. That presumption does not arise, however, for

healthy children such as B.F.

4. Petitioner claims that B.F. was injured at

approximately 8:30 a.m. when she "slipped off a chair," but

thereafter continued to play normally for an hour. Petitioner

further claims that it was only when a teacher tried to change

her diaper around 9:30 a.m. that B.F. began to cry and rapidly

became inconsolable.

5. The persons who gave that account of the incident did

not test ify, nor give a sworn statement at any time. There is

no record evidence from anyone with personal knowledge of the

conditions and circumstances in B.F.'s day care room on the date

she suffered the fracture.

6. The emergency room physicians who treated B.F.'s

fracture rejected the possibility that the child could have

played normally for an hour after she fractured her tibia in a

"fall off a chair."

7. The medical evidence regarding the fracture, which is

clear, convincing, and undisputed, established that if the

fracture sustained by B.F. occurred in the manner Petitioner

claimed, it would have rendered the child in immediate need of

medical attention. More specifically, B.F. would have been

instantly rendered unable to bear weight and thus unable to

walk, let alone play normally. The pain and attendant crying

would have begun instantly, not an hour later.

8. Under Petitioner's version of how the fracture

occurred, the medical evidence compels the conclusion that

B.F.'s caregivers allowed her to cry in pain for an hour before

calling her parents. Negligent is a charitable characterization

of Petitioner's conduct.

9. If in fact B.F. played normally for an hour following

the 8:30 a.m. fall from a chair, the medical evidence compels

the conclusion t hat she did not sustain the fracture from that

fall, but rather in some other manner at some other time. Two -

year - olds must be under the supervision of certified caregivers

at all times precisely so that if accidents happen, parents,

treating physicians, and state regulators will know exactly what

occurred.

10. It was shortly after 9:30 a.m. when B.F.'s mother was

called at her office and asked to come to the day care center.

She summoned the child's father, and both parents were present

by approximatel y 10:00 a.m. By this time, the parties agree,

B.F. was hysterical. Her leg was swollen, painful to the touch,

and she was unable to bear weight on the injured leg.

11. The parents were not given an incident report

detailing the accident, either at the time they were summoned to

the center, nor at any time thereafter.

12. B.F.'s parents rushed her to the emergency room at

Miami Children’s Hospital where a cast was applied to the

injured leg.

13. On April 15, 2002, Belkis Molina (Molina), a licensing

c ounselor assigned to the Hialeah facility, was present in the

center for the purpose of further investigating the incident

involving B.F., who, by this time, had been withdrawn from the

facility. On that date, Molina observed that one staff member

was pre sent to supervise 17 toddlers. Florida law requires a

staff - to - child ratio for that age group of one to six.

14. In connection with her investigative duties, Molina

asked to see the incident report that was required by law to

have been done on March 19 th. The document was produced, but

the required parent signature was missing.

15. Later, on a form requesting a hearing in this matter,

Petitioner attached a copy of what appears to be the same

incident report; however, this document stated that the fath er

refused to sign the document.

16. On April 30, 2002, Benjamin Diaz (Diaz), the

Department licensing counselor assigned to Petitioner's

Homestead facility, observed additional violations relating to

the staff - to - child ratio requirement. Specifically, on that

date, the baby room had a staff - to - child ratio of one to six.

Florida law requires a ratio of one to four. Additionally, he

observed the three - year - old room with one staff member for 19

children. The correct ratio for that age group is one - to -

f ifteen.

17. Having observed these ratio violations, Diaz made a

follow - up visit on May 14, 2002. On that day he observed that

the two - year - old room had two staff members with 24 children.

Florida law requires no les than one staffer for 11 children.

CO NCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

19. In this case, the Department has satisfied its burden

to show by clear and convincing evidence that the Petitioner

committed the violations alleged in the administrative

complaint, and the reasonableness of the proposed penalty.

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

20. Unquestionably, B.F. was negligently sup ervised. No

credible explanation for her fracture was provided; instead the

explanation offered is completely inconsistent with clear and

convincing medical evidence. If in fact B.F. suffered the

fracture in the time and manner Petitioner claims, it was

profoundly negligent, even cruel, to wait an hour to commence

the process of notifying the parents so that medical attention

could be provided to B.F.

21. Petitioner further violated the law in failing to

promptly and accurately document the incident.

22 . Finally, Petitioner was out of compliance on three

occasions with state requirements for staff to child ratios.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department issue a final order

fin ing Petitioner $1,000.00.

DONE AND ENTERED this 30th day of June, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

FLORENCE SNYDER RIVAS

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 30th day of June, 2003.

COPIES FURNISHED :

Bianca R odriguez

Juanita Ramirez

Young American Day Care Center

1905 West 35th Street, No. 120

Hialeah, Florida 33012

Rosemarie Rinaldi, Esquire

Department of Children and

Family Services

401 Northwest 2nd Avenue, Suite N - 1014

Miami, Florida 33128

Paul Floun lacker, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Jerry Regier, Secretary

Department of Children and

Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the righ t to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.