04-000271 Mary C. Johnson vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, June 7, 2004.

Summary: Respondent was unable to establish good cause to deny a new family day care license upon the basis of a prior family day care license file and unconfirmed abuse/neglect reports.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY C. JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0271

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

U pon due notice, this cause came on for a disputed - fact

hearing on March 19, 2004, in Ocala, Florida, before

Ella Jane P. Davis, a duly - assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mary C. Johnson, pro se

1620 Northwest 17th Place

Ocala, Florida 34475

For Respondent: Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

STATEMENT OF THE ISS UE

Whether Petitioner may be granted a family day care home

registration/license.

PRELIMINARY STATEMENT

On or about January 22, 2003, the Department of Children

and Family Services (DCF) notified Petitioner that her

application to operate a family day care home had been denied

for disqualifying information found in the background screening

process. This letter was admitted into evidence as Exhibit

ALJ - A. In relation thereto, Petitioner timely requested a

disputed - fact hearing. Petitioner contended that a second

denial notice was sent on October 22, 2003, but it was not

placed in evidence. In either case, the matter was not referred

to the Division of Administrative Hearings until January 22,

2004, and there is no dispute that Petitioner's request f or

hearing was timely.

By Notices of Hearing issued February 12 and 17, 2004, the

case was scheduled for hearing before the Division on March 19,

2004.

At the disputed - fact hearing, the parties stipulated that

because the only impediment to granting Peti tioner a family day

care home registration was the background screening, it was

expedient for DCF to present its case first. Pursuant to

Osborne - Stern & Co. v. Dept. of Banking and Finance , 670 So. 2d

932 (Fla. 1996), the undersigned ruled orally that pri or

offenses, if any, must be proven by clear and convincing

evidence.

Official recognition was taken of Section 402.313, Florida

Statutes.

DCF presented the oral testimony of Glenda McDonald and had

five exhibits admitted in evidence. Petitioner present ed the

oral testimony of Albert Johnson, Jr., and testified on her own

behalf.

No transcript was provided, and neither party submitted a

post - hearing proposal.

FINDINGS OF FACTS

1. Petitioner operated a licensed family day care home

from 1992 until June 2002, when she ceased to operate a home.

2. In late 2002 or early 2003, Petitioner applied to DCF

for a new license.

3. Petitioner's new application was denied solely because

of information found during the background screening, including

information from her prior licensure file.

4. Glenda McDonald was Petitioner's day care supervisor

during Petitioner's prior licensure. In that capacity,

Ms. McDonald conducted regular inspections of Petitioner's day

care home.

5. On August 25, 1992, Ms. McDonal d's superior sent

Petitioner a letter stating that Petitioner was operating a day

care facility in excess of its licensed capacity and requiring

Petitioner to come into compliance by August 28, 1992.

Petitioner credibly denied that she received this lette r. The

letter was not sent to Petitioner's address of record and no

proof of the allegations in the letter were presented.

6. During Petitioner's prior licensure, DCF generated four

abuse/neglect reports related to Petitioner's day care home.

None of t hese reports were written by Ms. McDonald, who was

never a child protection investigator (CPI). Copies of these

reports were included in Petitioner's old licensure file. 1/

7. Abuse/neglect Report 1998 - 050246 relates to a child who

wandered away from Pet itioner's day care home on May 1, 1998.

The report was verified for "inadequate supervision: neglect"

against Petitioner.

8. As a result of the events giving rise to the May 1,

1998 abuse/neglect report, Ms. McDonald cited Petitioner's day

care home on June 4, 1998, with one count of "Class II non -

compliance: lack of direct supervision," pursuant to Florida

Administrative Code Rules 10M - 12.020(5)(a) and 65C - 22.001(5)(a).

Since this exhibit was a carbon copy in Ms. McDonald's

possession, it is inferred that Petitioner actually received a

copy of this informal citation. Ms. McDonald also issued a

warning letter to Petitioner on June 4, 1998, citing only Rule

10M - 12.0202(5)(a), and saying that Petitioner could appeal after

she received a subsequent fine letter for either $50.00 or

$100.00. In connection with the May 1, 1998 incident,

Ms. McDonald had interviewed Petitioner, who had made various

admissions. After her investigation, Ms. McDonald was satisfied

that a child entrusted to Petitioner's care ha d walked out of

Petitioner's enclosed yard and further had walked beside a busy

road, without Petitioner's knowledge, and that the child had

been picked up by the police after nearly two hours' absence,

near a busy intersection. In the course of Ms. McDon ald's

investigation, Petitioner had admitted her caretaker

responsibility for the child but had denied that he was a paying

day care client. At the hearing in the instant case, Petitioner

maintained essentially the same position.

9. Abuse/neglect Report 1999 - 105502 relates to

allegations, arising on August 19, 1999, that Petitioner had

locked day care children in a time - out room or "cubby" and that

day care children had been beaten. No indicators were found by

the CPI against Petitioner for corporal pun ishment. The report

was eventually closed with "some indicators" against Petitioner

as the caretaker responsible for confinement and bizarre

punishment, constituting neglect. However, DCF did not classify

or close this report at all until January 25, 200 2. As a

result, the report refers to "prior reports," but lists reports

for both previous and subsequent years: 98 - 505246, 99 - 105502,

99 - 118736, 00 - 128236, and 02 - 006119. Because the classification

of abuse/neglect report 99 - 105502 depended upon reports after

its date of commencement, some of which cannot be assessed as to

status, 2/ and because no competent, credible evidence concerning

the underlying August 19, 1999, event alleged in the report was

presented in the instant hearing, report 1999 - 105502 is

discounted in its entirety as evidence of any wrong - doing,

abuse, or neglect by Petitioner. 3/

10. Abuse/neglect Report 1999 - 118736 relates to

allegations of bite marks found on a nine - month - old child in

Petitioner's day care home on September 17, 1999. Petitioner

was listed therein as a "significant other." The report was

"closed with no on - going care needed."

11. Abuse/neglect report 2000 - 128236 relates to bite marks

found on one two - year - old child inflicted by another two - year

old child, both of whom were in Petitioner's day care home on

August 16, 2000. This report was classified only as

"investigation complete," and further stated that Petitioner was

the caretaker responsible. The report further noted that the

CPI wanted DCF to consider "remov ing" Petitioner's license due

to the number of abuse/neglect reports with "verified"

allegations and some indicators. Yet as of the closure of this

report, there appears to have been only the 1998 verified

report. ( See Findings of Fact 7 and 8).

12. Du e to all of the inconsistencies within the 1999 and

2000 reports, due to there being only one report (No. 98 - 050246)

ever actually classified as "verified," and due to the legally

indefinite nature of the classifications assigned by CPIs in

1999 and 2000, it is apparent that the CPIs who completed the

1999 and 2000 abuse/neglect reports had no clear understanding

of the terms required by law for classifying them. Because of

the vague classifications assigned to the 1999 and 2000 reports,

it may be inferred that Petitioner was never provided a timely

opportunity to contest them. ( See also Finding of Fact 17.)

Therefore, these reports cannot be called either "verified,"

"confirmed," "upheld," or "uncontested." ( See Conclusion of

Law 27).

13. On Novembe r 24, 1999, Ms. McDonald wrote Petitioner to

express DCF's concern, pursuant to Florida Administrative Code

Rule 65C - 22.001(5)(a), after the CPI's investigation and her own

independent inspection arising from "the repeated abuse

reports". Ms. McDonald's u se of the plural for "abuse reports"

is noted. However, her letter stated no "concern" other than

the incident of September 17, 1999, on which investigation had

been closed, naming Petitioner only as a "significant other."

The letter was sent certified m ail to inform Petitioner that the

violation was being classified as a Class II violation with a

$25.00 fine for each day of violation and she could appeal when

she got a subsequent fine letter. No return of certified mail

receipt was offered in evidence.

14. Ms. McDonald testified in the instant case that she

was contemporaneously aware of the bites on the nine - month - old

who was in Petitioner's day care on September 17, 1999, and that

she also was contemporaneously aware of another child who had

been bit ten while in Petitioner's day care. It is inferred from

her testimony that Ms. McDonald was familiar, from her regular

inspections, with the events surrounding the August 16, 2000,

abuse/neglect report of a two - year - old child suffering bite

marks from ano ther two - year - old child, because Ms. McDonald

further testified that it was upon the second biting incident

that DCF began to seriously consider revoking Petitioner's first

license. (See Findings of Fact 10 - 11).

15. On or about December 11, 2000, a DCF attorney drafted

an administrative complaint against Petitioner. The

administrative complaint sought only to impose administrative

fines for violations as follows: one 65C - 20.009(3)(a)

violation, Class I, inadequate supervision, with a fine of

$100.00; o ne 65C - 20.009(3)(a), Class II violation, inadequate

supervision, with a fine of $50.00; and one 65C - 20.009(3)(a)

violation, Class II, inadequate supervision, with a fine of

$50.00. The administrative complaint contained no prayer to

revoke Petitioner's li cense. The charges contained therein

apparently were solely the result of the abuse/neglect reports

arising from incidents on May 1, 1998 (the wandering child

incident); September 17, 1999, (the bites on the nine - month - old

child); and August 16, 2000, (th e bites on the two - year - old

child). An administrative complaint is merely an allegation.

Of itself, it proves none of the charges contained therein.

Moreover, there is no clear evidence that Petitioner ever

received the foregoing administrative complain t so as to have an

opportunity to contest the charges. However, the administrative

complaint suggests, contrary to some testimony, that Petitioner

had not previously been fined for these dates. It also clearly

demonstrates that, as of December 11, 2000, DCF did not view the

wandering child or the two incidents of biting children biting

each other as Code violations worthy of revoking Petitioner's

license.

16. Ms. McDonald testified that in 2002, as a result of

the foregoing administrative complaint, she told Petitioner that

DCF would not renew Petitioner's license when it came up for

renewal, and that consequently, Petitioner agreed to retire and

never reapply for a day care license, rather than suffer

administrative prosecution. Petitioner credibly den ied that

such a scenario had ever occurred. Petitioner testified that

she had never signed anything, did not know there were charges

pending against her, and only "retired" in 2002 because she had

been hospitalized and unable to work for a period of time. Her

husband credibly corroborated her desire to retire after

hospitalization. Because the 2000 administrative complaint was

apparently never served on Petitioner; because of the greater

weight of Petitioner's and her husband's combined testimony;

becaus e DCF seems to have repeatedly intended to assess

different degrees of noncompliance and different amounts of

fines for the same alleged events; because DCF introduced

warnings and citations but no fine letters containing the

opportunity to appeal/contest; and because it is not credible

that someone licensed for 10 years would retire and guarantee

never to reapply, only to avoid what, at worst, would be a $200

fine, Petitioner and her husband are found to be the more

credible witnesses on why Petitioner sur rendered her first

license, and it is accordingly found that Petitioner surrendered

her first license without coercion by DCF and without giving DCF

any promise not to reapply.

17. Petitioner is also found credible that she did not

know there were any co ntinuing problems as a result of any of

the oral or written warnings she had received. Her testimony in

this respect is understood to mean that she never received a

notice permitting her to contest any of the four abuse/neglect

reports discussed, supra. , or any formal notices to pay fines.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

19. Petitioner was previously licen sed for 10 years,

during which time DCF investigated her and her day care home on

at least four occasions. Of those four child protection

investigations, DCF's abuse/neglect reporting system verified

only one report of neglect against Petitioner. That wa s the

May 1, 1998, wandering - off of a non - day care child. Petitioner

should have been given the opportunity in a timely manner to

contest that report in an evidentiary hearing. Apparently, DCF

did not give her that opportunity until the present case aros e.

In this proceeding, DCF was required to carry the higher burden

of clear and convincing evidence to prove - up both the events

cited in the report and the classification of the report.

However, Petitioner has now been offered her due process rights

in t he hearing of this instant case, and herein report 98 - 050246

has been contested and found to be verified/confirmed.

Likewise, the underlying facts of that report, which were

proven - up in this proceeding, may be considered independently of

the abuse/neglec t report for purposes of Petitioner's present

licensing application.

20. The same due process opportunity, previously not

afforded Petitioner, was afforded Petitioner in the instant case

with regard to the other three reports.

21. Upon the foregoing findings of fact, report 99 - 105502

should be purged and Petitioner's name should be removed from

the abuse/neglect registry in connection therewith.

22. Reports 1999 - 118736 and 2000 - 12836 were proven - up to

the extent that the biting events occurred whil e the children

were in Petitioner's day care home and that Petitioner was a

caretaker of those children at the material time. However, on

the basis of the sparse evidence adduced herein and DCF's long -

held position that both these events merely constitute d Class II

violations, Petitioner's personal involvement or responsibility

for the biting events cannot be verified/confirmed. Children

biting one another is not necessarily a preventable occurrence.

That the two biting events occurred eleven months apar t does not

demonstrate a chronic problem, either. Petitioner may have been

"a significant other" and there may have been "some indicators,"

but just as DCF's CPIs did not verify either of these reports,

neither can the undersigned classify them as verifie d or

confirmed upon the evidence presented herein. Petitioner is

entitled to have those reports clearly labeled "not confirmed."

23. The only law cited by DCF to support its denial of

Petitioner's license application was Sections 402.301 through

402.31 9, Florida Statutes, including but not limited to

402.305(2) and 402.3055, Florida Statutes, and Florida

Administrative Code Rules 10M - 12.020(5)(a), 4/ 65C - 22.001(5)(a),

and 65C - 20.009(3)(a). 5/ DCF provided no proposed recommended

order.

24. Section 402. 302(3), Florida Statutes, defines "child

care personnel" to include Petitioner as the owner - operator of a

day care home.

25. Section 402.302(13), Florida Statutes, defines

"screening," in pertinent part, as follows:

"Screening" means the act of assessing the

background of child care personnel and

includes, but is not limited to, employment

history checks, local criminal records

checks through local law enforcement

agencies, fingerprinting for all purposes

and checks in this subsection, statewide

criminal records checks through the

Department of Law Enforcement, and Federal

Bureau of Investigation; . . .

26. See also Section 402.305 Licensing standards; child

care facilities.

(1) Licensing standards. The department

shall establish licensing standards that

each licensed child care facility must meet

regardless of the origin or source of the

fees used to operate the facility or the

type of children served by the facility.

* * *

(2) PERSONNEL. Minimum standards for child

care personnel shall include m inimum

requirements as to:

(a) Good moral character based upon

screening. This screening shall be

conducted as provided in Chapter 435, using

the level 2 standards for screening set

forth in that chapter.

27. Section 435.04 Level 2 screening standard s provides,

in pertinent part:

* * *

(2) The security background investigations

under this section must ensure that no

persons subject to the provisions of this

section have been found guilty of,

regardless of adjudication, or entered a

plea of nolo cont endere or guilty to, any

offense prohibited under any of the

following provisions of the Florida Statutes

or under any similar statute of another

jurisdiction:

* * *

(cc) Section 827.03, relating to child

abuse, aggravated child abuse, or neglect of

a c hild.

* * *

(4) Standards must also ensure that the

person:

(a) For employees or employers licensed or

registered pursuant to chapter 400, does not

have a confirmed report of abuse, neglect,

or exploitation as defined in Section

415.102(6), which has been uncontested or

upheld in Section 415.103.

28. Section 402.308(3)(d), Florida Statutes, provides in

pertinent part:

. . . a license may not be issued or renewed

if any of the child care personnel at the

applicant facility have failed the screening

required by Sections 402.305(2) and

402.3055.

29. Section 827.03(3)(a)(1), Florida Statutes, contains a

definition akin to the wandering child incident. However, the

provisions of Section 435.04(2)(cc) may not be employed herein

because Petitioner has never been found guilty, regardless of

adjudication, or entered a plea of nolo contendere or guilty to,

any offense prohibited, including but not limited to Section

827.03, Florida Statutes. The provisions of Section 435.04(4),

Florida Statutes, may not b e employed with regard to the only

verified report in this case because Petitioner was not

previously licensed pursuant to Chapter 400 and is not seeking

to be licensed pursuant to that statute.

30. Likewise, Section 402.3055, Florida Statutes, requires

a license applicant to disclose prior license suspensions,

revocations, disciplinary actions, or fines against the

applicant. It also permits DCF to deny an application if, upon

review of these prior situations, DCF finds the granting of the

license appli cation is not in the best interest of the state.

Because there have been only proposed disciplinary actions

against Petitioner's prior license, any failure of Petitioner to

disclose them cannot work against her here. It is reasonable to

interpret Section 402.3055, Florida Statutes, to place broad

discretion in the agency to determine whether granting a new

license is in the best interests of the state regardless of how

word of prior disciplinary actions reach it, but once again all

that was proven herein were proposed disciplinary actions. No

suspensions, no revocations, and no fines were proven to have

been imposed.

31. On the other hand, Section 39.201(6), Florida

Statutes, is instructive. It provides, in pertinent part:

. . . Information in the c entral abuse

hotline and the department's automated abuse

information system 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 Sections 401.301 -- 402.319 and 409.175 -

- 409.176.

32. Therefore, it is concluded that DCF is entitled to

consider the single verified abuse report within its system as

part of its licensing review. See also Highland v. Dept. of

Children and F amily Services , DOAH Case No. 02 - 4598 (RO:

April 21, 2003; FO rejecting the RO entered July 14, 2003) and

B. C. v. Dept. of Children and Family Services , DOAH Case

No. 02 - 3398 (RO: March 4, 2003; FO: June 3, 2003.)

33. It is clear that Ms. McDonald erron eously believed

that all the abuse/neglect reports were true and proven when she

made, or advised in, DCF's 2003 decision to deny Petitioner's

pending day care home application. However, not all the reports

were verified. All the reports still are not ve rified. Only

one 1998 incident was verified then and proven - up herein. The

underlying incident occurred six years ago. The potential for

the wandering child to have been hurt in 1998 was substantial,

but he was not, in fact, hurt in that incident, and d espite the

report and underlying circumstances, DCF saw fit to allow

Petitioner to remain licensed from 1998 until 2002. It is also

clear that Ms. McDonald believed that a single verified abuse

report was sufficient to deny Petitioner's license applicatio n.

Research does not indicate that still to be the case, either.

DCF has cited no statute which requires that a person whose name

has been placed in the abuse/neglect registry in connection with

a normal child must secure an exemption to work in child ca re.

Moreover, the evidence in this case does not equate with prior

cases where qualified DCF personnel have testified that DCF has

a blanket policy or continuing procedure to never license any

applicant for whom there is so much as one verified case of

ch ild abuse or neglect in the applicant's history.

34. The evidence falls short of good cause to deny the

current license application.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is

RECOMMENDED:

That the Department of C hildren and Family Services enter a

Final Order granting Petitioner registration for licensing as a

day care home, subject to her fulfilling all the other

requirements for a new license applicant.

DONE AND ENTERED this 7th day of June, 2004, in

Tall ahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

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 7th day of June, 2004.

ENDNOTES

1/ By statute, the abuse/neglect reports may be considered by

the licensing agency and may be admitted in this proceeding.

However, Ms. McDonald was the only witness for DCF. She did not

perform any of the abuse/neglect investigations, as such, or

author any of the reports produced by DCF's Child Protection

Investigators (CPIs). None of the investigators nor any

witnesses named in the abuse/neglect reports were called to

testify. Therefore, the abuse reports cannot "speak for

themselves" so as to prove - up any part of their contents.

Accordingly, the findings of facts herein are based up on other

appropriate evidence and the first - hand (not hearsay) testimony

of Ms. McDonald. For instance, Ms. McDonald's recitation of

admissions by Petitioner has been accepted, where credible, but

not Ms. McDonald's recitation of what was "said" by CPIs,

neighbors, or law enforcement officers who did not testify. The

written police report reciting interview answers from third

parties likewise has not been relied upon for findings of fact.

None of the foregoing hearsay statements meets even the relaxed

ap proach to hearsay permitted by Section 120.57(1)(c), Florida

Statutes.

2/ DCF did not put Report No. 2002 - 006119 in evidence, so that

report and underlying incident cannot be used in this

proceeding. The CPI for Report No. 1999 - 105502 apparently

telesc oped that subsequent 2002 incident and several other

investigations together, using one or more unproven and

unverified reports to support each other and to support 1999 -

105502, all without any clear evidence.

3/ See Endnote 1, above.

4/ After rese arch, the undersigned can only conclude that this

rule has been superseded by newer, renumbered rule(s), but that

the new rules replaced it so long ago that the old rule cannot

now be reconstructed.

5/ These rules define daycare home staffing and direct

supervision requirements and would have been applicable to

whether or not Petitioner's earlier license should or should not

have been disciplined under the alleged conditions.

COPIES FURNISHED :

Mary C. Johnson

1620 Northwest 17th Place

Ocala, Florida 3 4475

Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

Paul F. Flounlacker, Jr., 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

Building 2, Room 204

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.