06-003674 Angela Collier vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, January 4, 2007.

Summary: Petitioner failed to demonstrate entitlement to Respondent`s approval of her application for a registered family day care home.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELA COLLIER, )

)

Petitioner, )

)

vs. ) Case No. 06 - 3674

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Purs uant to notice, Administrative Law Judge Lawrence P.

Stevenson conducted the administrative hearing in this

proceeding on behalf of the Division of Administrative Hearings

(DOAH) on November 29, 2006, by video teleconference between

Orlando and Tallahassee , Florida.

APPEARANCES

For Petitioner: Angela Collier, pro se

2931 Grandola Drive

Orlando, Florida 32811

For Respondent: Richard Cato, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S - 1106

Orlando, Florida 32801 - 1782

STATEMENT OF THE ISSUE

The issue is whether Respondent should deny Petitioner's

renewal application to operate a register ed family day care home

on the grounds that her failure to properly supervise children

at her registered family day care home demonstrates Petitioner's

inability to ensure the safety of children under Petitioner's

care.

PRELIMINARY STATEMENT

By letter dated July 26, 2006, Respondent notified

Petitioner that Respondent intended to deny Petitioner's renewal

application for a registered family day care home on the grounds

that Petitioner failed to properly supervise children at her

registered family day c are home, resulting in one child biting

another so severely that the bitten child required emergency room

treatment. Petitioner timely requested an administrative

hearing.

At the hearing, Petitioner testified on her own behalf and

submitted no exhib its for admission into evidence.

Respondent presented the testimony of Victor Kruppenbacher,

the Department of Children and Family Services employee who

conducted the investigation into the biting incident, and of

Ivette Garcia, the Department's child c are licensing supervisor

for the district encompassing Orlando. Respondent's Exhibits A

through E were admitted into evidence. Respondent's Exhibit D

was a composite exhibit consisting of 17 emergency room

photographs of A.H., the biting victim. Respond ent's Exhibits A

through D were received pursuant to the exemption set forth in

Section 39.202(2)(j), Florida Statutes (2006), but have been

admitted under seal to protect the rights of the children

involved.

Neither party requested a transcript of the he aring record.

Neither party filed a Proposed Recommended Order.

FINDINGS OF FACT

1. Respondent is the state agency responsible for

registering family day care homes in Florida. Petitioner

operated a registered family day care in her home for at least

one year prior to her May 5, 2006, renewal application to

operate a registered family day care home. Respondent proposes

to deny that application.

2. By letter dated July 27, 2006, Respondent notified

Petitioner that Respondent proposed to deny Petitioner's

application to operate a registered family day care home (the

"Notice of Denial"). The Notice of Denial provides that on

April 7, 2006, Petitioner failed to properly supervise children

at her registered family day care home, in violation of S ection

402.301 et seq ., Florida Statutes (2005). The Notice of Denial

states that, as a result of Petitioner's failure to properly

supervise the children, one child bit another more than one

time, and the child who was bitten had to be taken to the

emerge ncy room, which led to investigations by both the police

and Respondent's protective investigation unit.

3. Respondent's protective investigation unit closed the

case on June 5, 2006, with verified findings of neglect for the

inadequate supervision that l ed to the injuries of the child who

was bitten.

4. The undisputed facts were that, on April 7, 2006,

Petitioner was caring for at least two children at her

registered family day care home. A.H. was an 11 - month - old male

who had just begun staying at Petit ioner's home. Petitioner did

not have a crib in the home. At the suggestion and with the

consent of A.H.'s mother, A.H. was strapped into his car seat

for his nap. The car seat was placed on the floor of a bedroom

in Petitioner's house. The second chil d, identified at the

hearing only as E., was an 18 - month - old male. E. was placed in

a playpen for his nap, in the same bedroom as A.H. Petitioner

knew that E. was capable of climbing out of the playpen. The

bedroom door was closed while the children nap ped.

5. While the children were sleeping, a female neighbor

knocked at Petitioner's door and asked to use her telephone.

The two women stood talking in the doorway for at least five

minutes. The neighbor heard screams coming from the bedroom,

and asked Petitioner if she shouldn't check on the situation.

Both women walked into the bedroom and saw E. standing over the

crying A.H., who was still strapped into his car seat.

Petitioner called out to E. to stop biting A.H.

6. Petitioner applied ice to A.H .'s swollen left eye. She

testified that she attempted to phone A.H.'s mother, but could

not reach her. When A.H.'s mother picked him up from

Petitioner's home, she called the police and took the child to

the emergency room at the Orlando Regional Medica l Center.

A.H.'s left eye was swollen. There were scratches and small

bite marks on the left side of his face and his left arm. All

of his injuries were consistent with his having been bitten and

scratched by E. There was no indication that A.H. had be en

abused by an adult.

7. Victor Kruppenbacher, Respondent's investigator,

testified that his investigation revealed that Petitioner had

been arrested for assault and battery in the 1980s, and that two

prior abuse reports had been lodged against her.

Mr. Kruppenbacher further testified that Petitioner lied to him

about both the arrest and the abuse reports.

8. Petitioner testified that she had already had problems

with E.’s climbing out of the playpen, and that it was against

her better judgment to plac e A.H. in the car seat for a nap.

Petitioner nonetheless placed both children in the same room,

behind a closed door, and did not herself notice A.H. crying

until her neighbor pointed it out to her.

9. Respondent should not grant Petitioner's applicatio n to

operate a registered family day care home. Petitioner failed to

establish that she is able to ensure the safety of children to

the level necessary to operate a registered family day care

home.

CONCLUSIONS OF LAW

10. DOAH has jurisdiction over t he parties and subject

matter of this case. §§ 120.569 and 120.57(1), Fla. Stat.

(2006). The parties received adequate notice of the

administrative hearing.

11. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a prepondera nce of the evidence that she

is able to ensure the safety of children to the level necessary

to operate a registered family day care home. Department of

Banking and Finance v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Florida Department of Transp ortation v. J.W.C.

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

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

(Fla. 1st DCA 1977).

12. Petitioner failed to satisfy her burden of proof to

establish that she is able to e nsure the safety of children in

her care to the level necessary to operate a registered day care

home.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusion of

Law, it is

RECOMMENDED that Respondent enter a Final Order denying

Pet itioner's renewal application to operate a registered family

day care home.

DONE AND ENTERED this 4th day of January, 2007, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division o f 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 4th day of January, 2007.

COPIES FURNISHED :

Angela Collier

2931 Grandola Drive

Orlando, Florida 32811

Richard Cato, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S - 1106

Orlando, Florida 32801 - 1782

Gregory Venz, Agen cy Clerk

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Luci D. Hadi, Secretary

Department of Children and

Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahass ee, Florida 32399 - 0700

John Copelan, 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 right to submit w ritten 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.