05-002434 Sislyn Gonsalves Daycare vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, January 4, 2006.

Summary: Petitioner`s husband meets the definition of "child care personnel." But because of his third degree felony, the licensed premises should be moved or an exemption from disqualification should be sought. Suspension should be stopped pending the decision.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SISLYN GONSALVES DAYCARE, )

)

Petitioner, )

)

vs. )

) Case No. 05 - 2434

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal proceeding and hearing before

P. Michael Ruff, a duly - designated Administrative Law Judge of

the Division of Administrative Hearings. The formal hearing was

conducted in Deland, Florida, on September 27, 2005. The

ap pearances were as follows:

APPEARANCES

For Petitioner: Sislyn Gonsalves, pro se

2820 Lake Helen Osteen Road

Deltona, Florida 32738

For Respondent: George P. Beckwith, Jr., Esquire

Department of Children and

Family Servi ces

210 North Palmetto Avenue, Suite 440

Daytona Beach, Florida 32114 - 3269

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Petitioner's license to operate a family daycare

home should be suspended based upon the Petitioner's husband's

plea of nolo contendere to a disqualifying second degree felony.

PRELIMINARY STATEMENT

This cause arose when it came to the Respondent Agency's

attention that the husband of the Petitioner, Clayton A.

Gonsalves, beca me involved in an incident with the Petitioner's

and his son, wherein Clayton Gonsalves struck his son with a

short length of PVC pipe on or about the left shoulder and right

hand. The police became involved, charged Mr. Gonsalves and the

criminal charge was ultimately disposed of by his entry of a

plea of a nolo contendere to a criminal charge of "aggravated

child abuse," a second degree felony. Thereafter, the Agency

notified the Petitioner by letter that it was seeking suspension

of her family daycare home license because of Mr. Gonsalves'

residence in the home and as a result of his plea to a second

degree felony. The Petitioner elected to contest this initial

action by the Agency and the cause was ultimately transmitted to

the Division of Administrat ive Hearings and the undersigned

Administrative Law Judge

The cause came on for hearing as noticed. At the hearing

the Petitioner presented her own testimony and that of Imelda

Roberts; Pedro Ayallo, a state licensing inspector for the

Department of Chil dren and Family Services (DCF); and Jaheida

Corchado, a parent of one of the children cared for in the

Petitioner's family daycare home. The Agency presented the

testimony of its child care licensing unit supervisor, Freneau

Surgine. Additionally, the Ag ency presented Exhibits A through

E which were admitted into evidence. Exhibit F was admitted as

corroborative hearsay only (police report) and Exhibit G was

admitted into evidence (circuit court disposition order). Upon

conclusion of the proceeding, the parties submitted Proposed

Recommended Orders which have been considered in the rendition

of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Sislyn Gonsalves, has operated a family

daycare home at times pertinent hereto, including in 2005 up

through the time of the hearing, pursuant to license number

F12V00010. The family daycare home is located at 2820 Lake

Helen Osteen Road, Deltona, Volusia County, Florida.

2. The Petitioner and her husband Clayton A. Gonsalves

have had repeated discip linary problems with their 13 year old

son, K. G. K. G. had been repeatedly in trouble at school and

may have been involved in an incident involving a theft, of

which his parents became aware. On or about April 16, 2005, an

incident occurred in the Petit ioner's home. The Petitioner's

husband Clayton Gonsalves and the Petitioner were trying to

leave for church that morning and to persuade their son K. G. to

attend church with them. An argument between the son and

Mr. Gonsalves ensued. During the inciden t Mr. Gonsalves picked -

up a short piece of light weight PVC pipe, approximately three

feet by three quarter's of an inch, and struck his son several

times on the left shoulder and the right hand. The persuasive

evidence in this case is that the blows wit h the light weight

PVC pipe did not leave marks. The son, K. G., being angry and

upset at the time, abruptly left the family premises. The

Petitioner and her husband and other child thereupon preceded to

attend church. Later that day, after the incident had

apparently been reported to the police, the police arrested Mr.

Gonsalves and charged him as having committed child abuse.

3. On or about May 11, 2005, Mr. Gonsalves entered a plea

of nolo contendere on a charge of aggravated child abuse, which

is a second degree felony. This resulted from the incident

described above. As a result of that plea Mr. Gonsalves was

sentenced to a term of three years of probation, and adjucation

was withheld. As a condition of his probation he was ordered to

have "no violent contact" with the victim, K. G., and to "comply

with the Department of Children and Family's conditions and case

plans."

4. Mr. Gonsalves works in the State of New York as a

plumber. He returns to his family residence, to be with his

family, wh enever possible, between jobs. He resides there with

the Petitioner and their children at such times. He is often

present in the family residence while the Petitioner is

providing daycare for other children and often assists her in

providing care for the children.

5. The unrefuted, persuasive evidence adduced by the

Petitioner through her testimony and that of her witnesses

establishes that she and her husband are loving parents who do

not maintain an abusive home. They treat their own children and

t he children they provide daycare for, as clients, in a loving,

responsible and positive way. The Petitioner is in the process

of earning her college degree in Early Childhood Education and

desires to continue in the business of providing daycare. The

lac k of an abusive climate in the home is borne out by the fact

that the Petitioner's and Mr. Gonsalves's children are in the

gifted program in school, and by the fact that K. G.'s grades

and scholastic standing at school have marketedly improved since

the in cident in question.

6. The Petitioner's witnesses, particularly her mother,

described Mr. Gonsalves as a loving husband and father who does

not commit abuse, who does not drink, smoke or abuse his wife or

children. Witness Ayallo, the agency's Lic ensing Inspector,

established that the Petitioner's family daycare home is always

in compliance with relevant regulatory rules and statutes, and

he corroborated the Petitioner's testimony concerning the

history of disciplinary problems caused by her son. Witness

Surgine, the Agency's Licensing Specialist established that the

Agency only wanted to suspend the licensure because of the fact

that the husband, Mr. Gonsalves, would, on occasion, be present

in the home when child clients are present. The Agency did not

feel that the incident justified a revocation of license.

7. This is an unfortunate, isolated incident. The

persuasive evidence of record shows that Mr. Gonsalves is not an

abuser of his children, the children of others or his wife, the

Petitio ner. The Petitioner is operating her facility as an

exemplary family daycare home and desires to continue to do so.

Even though she and her family are enduring rather straitened

financial circumstances, she is successfully pursuing a college

degree in Ea rly Childhood Education. The testimony of

Ms. Corchado, whose son has been cared for by the Petitioner in

excess of three and one - half years, corroborates the exemplary

record and caring atmosphere maintained by the Petitioner in

operation of her family d aycare home. Ms. Corchado has tried

many daycare facilities and believes that the Petitioner's is

the best one she found in terms of providing a loving, positive,

environment for her son. Her son "adores the Petitioner and her

family" and has become very close to them, even attending church

with them on occasion. The Petitioner helps her son with his

school work and Ms. Corchado has never observed or learned of

any abuse occurring in the home.

8. The incident which occurred with Mr. Gonsalves and his

s on is clearly an isolated unfortunate occurrence. It was

deeply regretted by all concerned even before the Agency

Respondent became aware of it. It is ironic that the

Petitioner, who has conducted an exemplary child care facility

operation, has been plac ed at risk for losing her licensure

status while other child care facilities licensed by the

Respondent with more violations of record which can impinge on

the adequate care of children can remain licensed under

corrective plans and procedures. The Agency , commendably, has

recognized the unjust, automatic operation of the statute at

issue herein, in terms of the Petitioner's particular

circumstances and incident, by declining to seek revocation of

licensure but merely suspension until the issue of

Mr. Gons alves's residence in the daycare facility is resolved.

In any event, this was unfortunate effort at child discipline

which became a little too heated and went awry. As the

Petitioner pithily and eloquently put it, "If you don't

discipline your children, they will grow up and the police will

do it for you."

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

10. Section 402.302 (7), Florida Statutes, defines a family

daycare home as "an occupied residence in which child care is

regularly provided for children from at least two unrelated

families and which receives a payment, fee, or grant for any of

the children receiving care, w hether or not for a profit." The

Petitioner's home meets this definition of a family daycare

home.

11. Section 402.302(3), Florida Statutes, defines child

care personnel as including " . . . any member, over the age of

12 years, of a childcare facility' s operator's family, or person

over the age of 12 years, residing with a child care facility

operator if the child care facility is located in or adjacent to

the home of the operator, or if the family member of, or person

residing with, the child care faci lity operator has any direct

contact with the children in the facility during its hours of

operation." The Petitioner's husband, Clayton Gonsalves, meets

the definition of "child care personnel."

12. Section 402.305(2), Florida Statutes, regulates the

p ersonnel background screening requirements for child care

personnel. More specifically, Section 402.305(2)(a), Florida

Statutes, mandates that screening for all child care personnel

be conducted as provided in Chapter 435, Florida Statutes, using

the Leve l II standards.

13. Section 435.04, Florida Statutes, sets forth the

background screening standard by which all child care personnel

shall be evaluated. More specifically, Section 435.04(2),

states, in pertinent part:

The security background investiga tions 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 nolo -

contendere or guilty to any offense

prohibited under any of the following

provision s of the Florida Statutes . . .

(ee) Section 827.03 relating to child

abuse, aggravated child abuse, or neglect of

a child.

14. There is no question that the Petitioner's husband,

Clayton Gonsalves, was sentenced in Volusia County, in Case No.

2005 - 00 625CFAWS, to a term of three years' probation for the

criminal charge of aggravated child abuse, which is a second

degree felony under the above - cited statute. Adjudication was

withheld by the court.

15. Because of his position as being "child care

pers onnel," and because he is over 12 years of age and resides

in the home of the Petitioner where she operates her child care

facility, Mr. Gonsalves is disqualified from his position as

child care personnel in accordance with Sections 402.305(2)(a)

and 435.0 4(2)(ee), Florida Statutes, because of his plea of nolo

contendere to the criminal charge of aggravated child abuse,

which is a second degree felony.

16. Accordingly, in light of the above findings of fact

and the operation of the statutory authority re ferenced above,

Mr. Gonsalves is disqualified from residing as child care

personnel within the family daycare home facility, which is his

family's residence as long as it is operated as a family daycare

home, during such times as it is so operated. Thus t he Agency,

regrettably, is within its authority in seeking to suspend the

licensure of the Petitioner while Mr. Gonsalves is resident

within the family daycare home in question. It would seem that

the Petitioner has two alternatives in order to avoid susp ension

of licensure and to continue to operate her facility: To move

the facility to another location, perhaps to another residence

of another family member or for Mr. Gonsalves, since he meets

the above definition of "child care personnel" to seek an

exe mption from the disqualifying event of his plea of nolo

contendere by applying for an exemption from that

disqualification pursuant to 435.07, Florida Statutes (2005).

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, th e evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Department

of Children and Family Services suspending the license of the

Peti tioner for the above found and concluded reasons but that

the suspension be stayed while, under appropriate Department

supervision, the Petitioner and Mr. Gonsalves resolve the issue

of his residence within the family daycare home location

possibility of t he licensed daycare home being re - located to

another premises or while Mr. Gonsalves acts to secure an

exemption (if successful) from the above - referenced

disqualifying offense.

DONE AND ENTERED this 4th day of January, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCO M 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 4th day of January, 2006.

COPIES FURNISHED :

Gregory Venz, 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

Sisly n Gonsalves

2820 Lake Helen Osteen Road

Deltona, Florida 32738

George P. Beckwith, Jr., Esquire

Department of Children and

Family Services

210 North Palmetto Avenue, Suite 440

Daytona Beach, Florida 32114 - 3269

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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 filed with the agency that

will issue the Final Order in this case.