12-000750 Department Of Children And Families vs. Redlands Christian Migrant Association, Inc., D/B/A Rcma Smith Brown Child Development Center Status: Closed Recommended Order on Monday, August 6, 2012.

Summary: Petitioner did not prove a violation by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILIES , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0750

)

REDLANDS CHRISTIAN MIGRANT )

ASSOCIATION, INC., d/b/a RCMA )

SMITH BROWN CHILD DEVELOPMENT )

CENTER , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on July 12, 201 2 , in Ft. Myers, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administr ative Hearings.

APPEARANCES

For Petitioner: Eugenie G. Rehak, Esquire

Department of Children and Families

Post Office Box 60085

Fort Myers, Florida 33906

Rebecca F . Kapusta, Esquire

Department of Children and Families

93 93 North Florida Avenue

Tampa, Florida 33612

For Respondent: Kenneth Oertel, Esquire

Timothy P. Atkinson, Esquire

Oertel, Fernandez, Bryant

and Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

STATEME NT OF THE ISSUE

The issue in this case is whether Respondent, Redlands

Christian Migrant Association, Inc., d/b/a RCMA Smith Brown Child

Development Center ("RCMA" or the "Center"), violated Florida

Administrative Code Rule 65C - 22.001(5)(a) and section

402 .281(4)(a), Florida Statutes (2011), 1/ and, if so, what

licensure discipline should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Children and Families (the

"Department"), issued an Administrative Complaint against RCMA

dated December 29, 201 1. RCMA asked for a formal administrative

hearing and filed a Petition for Hearing dated January 23, 2012.

The Administrative Complaint and Petition for Hearing were

forwarded to the Division of Administrative Hearings on

February 23, 2012, and assigned to the undersigned Administrative

Law Judge .

At the final hearing, the Department called seven witnesses:

A.P., mother of the child at issue in this proceeding; C.P. , aunt

of the child; Eddie Gibbs, bus driver; Mihaela Bobcia - Pessmer,

director of RCMA ; Je anette Witmer, licensing counselor; Lisa

Voigt, abuse investigation supervisor; and Sherrie Quevedo,

licensing supervisor. The Department offered 15 exhibits into

evidence, all of which were admitted. RCMA called four

witnesses: Jasmine Lee, aide and su bstitute teacher; Barbara

Clark, driver; Tiara Holloman, RCMA employee; and Leslie Moguil,

associate director. RCMA did not offer any additional exhibits

into evidence.

At the conclusion of the final hearing, the parties were not

certain if a transcript of the proceeding would be ordered. The

parties were given ten days from the date of hearing to submit

proposed recommended orders (PROs) or to advise if a transcript

would be ordered. The transcript of the proceeding was not

ordered. The Department and RCMA each timely filed a PR O and

each was duly considered in the preparation of this Recommended

Order.

Subsequent to the filing of the parties' PROs, RCMA moved to

strike portions of the Department's PRO as being unsupported by

the record. The Departm ent filed a response. The motion is moot

in that the undersigned Administrative Law Judge will not

consider any proposed findings of fact that are not supported by

the evidence in this case, whether or not the opposing party

files a motion.

FINDING S OF FA CT

1. RCMA is a child care facility owned by a large not - for -

profit entity, Redlands Christian Migrant Association, Inc. (the

"Association"). The Association has been in existence since 1965

and currently operates approximately 80 facilities, serving in

excess of 8,000 children statewide. Over half of the

Association's facilities, including RCMA, are accredited. The

Association serves about 300 children in the greater Arcadia

area, most of whom are low income, at risk children. Many of the

children hav e disabilities. A majority of the children served by

RCMA come from migrant worker families.

2. RCMA has received a Gold Seal certification from the

S tate , which is in effect until March 31, 2013. As a Gold Seal

facility, the Center receives approximat ely $36,000 per year in

funding from the State. That money is used to hire staff to

provide care for indigent children.

3. RCMA is located in Arcadia. It uses an application for

enrollment which sets forth the duties and responsibilities of

both the pa rents and RCMA for the children being served. The

application, which also serves as the admission agreement, does

not mention transportation.

4. Prior to the fall of 2010, children at RCMA , who were

also going to public school , would be transported to th e Center

at the end of the school day by way of the regular school bus.

The school bus would drop the children off right in front of the

Center. Due to budget constraints and other issues, the DeSoto

County School Board decided to make changes to the bus service.

Instead of being dropped off at RCMA's doorstep, the bus would

discharge the children at the closest regular bus stop near RCMA.

5. The School Board has several rules concerning the

transportation of students via school bus. No kindergarten or

first - grade student, for example, may be left at a bus stop

alone. There must be an older sibling with them or a designated

adult must be waiting at the bus stop.

6. After the change in School Board policies in 2010, the

school bus would drop RCMA chi ldren off at a bus stop "one or two

blocks" from the Center. RCMA would send two workers down the

street to greet the children and escort them back to the Center.

Whenever it was raining or threatening rain, the two workers

would drive a vehicle from the Center to the bus stop , rather

than walking. The Center's vehicle was also an actual school

bus, but will be referred to herein as a van to differentiate it

from the school bus.

7. There are no rules governing operation of a child day

care center which require a facility to provide transportation

for children. Each licensed day care center may opt to provide

transportation, e.g. , for field trips or other excursions, but

they are not required to do so. If they opt to provide this

service, then there are rules governing the service. For

example, the vehicles must have seat belts and be licensed and

insured, and the drivers must be qualified, etc.

8. On October 19, 2011, about three months into the

2011 - 2012 school year, there were three elementary schoo l - age d

children attending the Center: J.H. , Chantal , and Brittany.

Each of them was a kindergarten or first - grade student. All

three of them attended West Elementary School during the school

day and then went to the Center after school was out. The

chi ldren were transported from West Elementary School to the

Center on Bus No. 109, driven by Eddie Gibbs. Mr. Gibbs had

three stops after picking up children at the school. The last

stop was the one near RCMA where J.H. , Chantal , and Brittany were

to be di scharged.

9. On that day, Mr. Gibbs pulled away from the school at

approximately 2:00 in the afternoon. He received a call on his

radio that two students (one of whom was J.H. ) had been left

behind. He returned to the school to pick them up and then

c ontinued on his route. When he got to his last stop (the one

near RCMA), J.H. , Chantal , and Brittany all got off the bus. The

Center's van and two workers were waiting for these children as

was the normal procedure. About 20 to 25 other children got off

at this stop as well. Ms. Lee, the RCMA worker, waved at

Mr. Gibbs and he drove away.

10. Ms. Lee immediately corralled Chantal and Brittany as

they exited the bus. She did not see J. H. Ms. Lee asked the

girls where J.H. was , and they told Ms. Lee he h ad been on the

bus , but that his mother had picked him up at a prior bus stop.

Ms. Lee took the girls to the van for transport back to the

Center. The van driver, Ms. Clark, asked the girls where J.H.

was, and the girls told her what they had told Ms. Le e. Neither

Ms. Lee nor Ms. Clark was surprised that J.H. was not on the bus

because he had been absent from school the past two days and had

not ridden the bus to the Center.

11. At the Center, one of the girls changed her story and

said that J.H. 's aun t, not his mother, had picked him up at the

prior bus stop. Pursuant to RCMA protocol, Ms. Lee advised

Ms. Holloman, a co - worker, that J.H. had not been on the bus.

Ms. Holloman, again pursuant to protocol, called the Center's

family support worker, Ms. Marshall , to report that J.H. had not

arrived on the school bus. Either Ms. Lee or Ms. Marshall called

the school to confirm that J.H. had been absent that day.

However, the school advised the Center that J.H. had been at

school and had boarded the bus f or transport to the Center.

12. Several things happened quickly after it was determined

that J.H. was missing. Ms. Marshall called J.H. 's mother, A.P.,

to report that J.H. had not gotten off the bus and to inquire as

to whether A.P. had picked him up as reported by the two girls.

A.P. worked at a pharmacy and apparently could not receive

telephone calls, so the Center's phone call went to her voice

mail. At her next break, A.P. checked her messages and found out

J.H. was missing. She called the Cent er to report that she had

not picked up J.H. , called the school, and got in her car to

drive to the Center.

13. Simultaneously, the Center sent all available workers

out to scour the streets looking for J. H. Law enforcement was

notified as well. Workers went out on foot and in personal and

RCMA vehicles to search for J. H.

14. While A.P. was driving to the Center, she sent a text

to her sister, C.P., asking her to pray for J.H. because he was

missing. C.P. texted back that J.H. was , in fact , at her house ,

safe and sound. The crisis was over. A.P. went on to the Center

and advised them that J.H. had been found.

15. When A.P. picked up her son, she asked him where he had

been and how he arrived at his aunt's house. J.H. has verbal and

communication diffi culties, so even at age five , he could not

effectively tell his mother what had transpired after he exited

the bus. Despite her efforts, A.P. could never get a clear

explanation from J.H. about what happened. She drove J.H. from

C.P.'s house to the Cente r to see if he could tell her where he

had been along the route. At one point , they found J.H. 's

backpack hanging on a mailbox. A.P. asked the homeowner about

it , but the man said that he had found the backpack lying on the

road and hung it on the mailbo x so its owner could claim it. He

had never seen J.H. earlier in the day.

16. It is approximately 1.7 miles from the Center to C.P.'s

house. The route between those two places includes a fairly busy

state road, an area with drainage ditches, and various

neighborhoods. There were many places along the route that could

have been dangerous for a young child.

17. It is not known how J.H. got to his aunt's house.

There is no evidence as to whether he was alone or with other

people. No one knows if he receiv ed a ride or found his way

independently. It is impossible to know if J.H. was ever in

jeopardy or if he was completely safe. His aunt only remembers

hearing a child yelling outside. She assumed it was one of her

children, but when she looked outside, s he saw J.H. being

harassed by some neighborhood Chihuahua dogs. J.H. did not

appear to be upset or scared, except for his confrontation with

the dogs. That is, he did not seem to be upset about his journey

to his aunt's house.

18. How J.H. became lost is not clear. Ms. Lee attempted

to recreate the scene at the bus stop: When she arrived at the

bus stop as a passenger in Ms. Clark's van, the school bus had

not yet gotten to the stop. As was their normal procedure,

Ms. Clark parked the van across the st reet in a church parking

lot to wait for the school bus. When the school bus pulled into

the bus stop, Ms. Clark pulled the van in behind the school bus.

Ms. Lee then got out of the van and walked up to the school bus.

By then, some children had already exited the school bus as she

began to look for her charges. The two girls had been sitting

together near the front of the bus; J.H. generally sat further

back with other students. As Ms. Lee approached the bus,

children were already exiting and heading off in different

directions. She does not remember being distracted by anything;

she just didn't see J.H. get off the bus. To further confuse the

situation, J.H. had been absent from school the prior two days

and , thus , had not exited the bus on those da ys either. Ms. Lee

does not know how she failed to see J.H. exit the bus.

19. As a result of the incident, the Center terminated the

employment of Ms. Lee immediately. However, after reviewing a

videotape of the bus on that day, the Center decided that it had

been rash. It now wants to "make things right" with Ms. Lee and

re - hire her. (The videotape was not entered into evidence by

either party.)

20. Interestingly, A.P. did not even know about the

arrangement whereby RCMA staff met J.H. and other stud ents at the

bus stop. She had never been to the bus stop prior to

October 19, 2011. She had a verbal understanding that the Center

would get J.H. from school to the facility, but did not have any

detail s as to how that would be accomplished. As far as A .P. is

concerned, the incident concerning J.H. was not foreseeable , and

the Center did all it could do in the situation. A.P. kept her

children at the Center until moving them recently due to

transportation issues.

21. Apart from the action taken by the D epartment's

licensure section, there was also a child protective

investigation conducted about the incident as well. That

investigation resulted in no findings of abuse or neglect.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

juris diction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2012).

23. Child care facilities are regulated by the Department

in accordance with rules duly promulgated pursuant to sta tute.

Rule 65C - 22.001(5)(a), for example, addresses the requirement for

supervision of children in facilities and states:

Direct supervision means watching and

directing children's activities within the

same room or designated outdoor play area ,

and respo nding to the needs of each child.

Child care personnel at a facility must be

assigned to provide direct supervision to a

specific group of children, and be present

with that group of children at all times.

When caring for school - age children, child

care personnel shall remain responsible for

the supervision of the children in care ,

shall be capable of responding to

emergencies, and are accountable for

children at all times, including when

children are separated from their groups .

(emphasis added ) .

24. The cited rule is the basis for the Department's

administrative complaint filed against RCMA. RCMA argues that

the rule does not apply to the facts of this case because :

(1) J.H. was not in a room or designated outdoor play area; and

(2) J.H. was not a ch ild "in care" at the time of his

disappearance from the bus stop. That argument strains the

boundaries of credulity. That interpretation would seem to

suggest, for example, that when the Center took children on a

field trip to a museum, ball park, or bow ling alley, it would not

have to supervise them.

25. The question does arise, however, as to whether

children at the bus stop are in the care of RCMA , and, if so, at

what point in time that care commenced. The Department's rules

are mute as to when "care" commences , and there is no case law

that clears up this issue. Thus, it becomes a matter of fact as

determined by the evidence presented.

26. In this case, there was no written agreement wherein

RCMA agreed to assume care of J.H. at any time before he arrived

at the Center. J.H. 's mother understood only that J.H. would

arrive at the Center, but did not know exactly how. The written

admission agreement she signed states only, "Your child's

attendance is very important! Bring your child to the center

e very day." That would strongly suggest that it is the parent's

duty to get the child to the Center. The insurance section of

the agreement speaks only to payment for injuries "occurring in

the RCMA center." It does not address the issue of

transportatio n at all.

27. Nonetheless, each day RCMA sent two employees to escort

the children from the bus stop to the Center. Clearly, the

children would be in the custody and control of the employees

once the children got off the bus and were accepted by the

emplo yees. No rule made them responsible for the children, but

RCMA must have recognized some sense of responsibility imposed by

sending their staff to the bus stop. The fine hair to be split

is the question of care and responsibility from the time the

child stepped on the bus until he was seen and placed "in care"

by the RCMA employee.

28. Reading the supervision rule in whole and extrapolating

its general intent, i.e., the care and supervision of children by

the child care center staff, Ms. Lee and Ms. Cla rk -- as agents of

the Center -- were responsible for J.H. as soon as they saw him

exit the school bus. However, they could not take the child into

their custody until , and unless , they saw him. There is no

evidence in this case as to why J.H. was not seen, but it could

have been because he hid from the Center's workers or because

they failed to search for him appropriately. The actual facts

may never be known. It is clear, however, that the bus driver

did not completely meet his duty of insuring that young children

are received by an adult. While he did make some sort of eye

contact with Ms. Lee, he did not see Ms. Lee or anyone else

assume custody and control of J. H.

29. In cases where a state agency makes allegations that an

applicant or licensee engage d in wrongdoing, the burden is on the

Department to prove the wrongdoing. Osborne Stern and Co. v.

Dep't of Banking and Fin. , 670 So. 2d 932, 934 (Fla. 1996).

Factual findings based on record evidence must be made indicating

how the alleged conduct viola tes the statutes or rules or

otherwise justifies the proposed sanctions. Mayes v. Dep ' t of

Child . and Fam . Servs . , 801 So. 2d 980, 982 (Fla. 1st DCA 2001).

30. The standard of proof in this case is clear and

convincing evidence , because the Department is seeking to

discipline the Center and take action detrimental to the Center's

license, thus , making it penal in nature. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

31. The clear and convincing evidence standard is greater

than the preponderance of the evidence standard used in most

administrative proceedings. The clear and convincing standard is

quite stringent. It has been described as follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

32. Accordingly, the Department must have proven the

allegations by the presen tation of distinctly remembered,

precise, explicit , and clear testimony. There was no testimony

from anyone as to what transpired with J.H. after he got on the

school bus. Neither the bus driver , nor Ms. Lee , nor J.H.

himself could say what happened at t he bus stop. No one saw J.H.

once he stepped onto the ground.

33. T he Department did not provide any persuasive evidence

as to the facts concerning the Center's care and supervision of

J. H. That is, the Department cannot say that J.H. was ever

received into the Center's care or that the Center failed to

supervise him. The weight of the evidence provided by the

Department was not sufficient in the mind of this finder - of - fact

to meet its burden of proof.

34. Notwithstanding the Department's failure to pr ove, by

clear and convincing evidence, that a violation occurred, a short

discussion of the proposed penalties is in order: Rule

65C - 22.010 sets forth the process for enforcing the rules

governing child care centers. The rule includes directives as to

ho w violations are to be categorized and the appropriate fines or

sanctions for each violation. In this case, described as the

failure to supervise a child resulting in an imminent threat to

the child that could result in serious harm, the violation was

cat egorized as a Class I violation. As the first Class I

violation, a fine of $100 to $500 would be warranted. See Rule

65C - 22.010 (2) (e). However, absent any evidence as to where J.H.

went from the moment he exited the bus, it is impossible to

determine wh ether there was ever an imminent threat to his

safety. Thus, whether this was a Class I offense or whether some

other classification applies , cannot be definitively established

by the facts.

35. Section 402.281 addresses the Gold Seal program. In

order t o be approved for or retain an accreditation under Gold

Seal, a facility must meet and maintain certain standards.

Subsection (4)(a) of the statute states that in order to maintain

the designation of a Gold Seal provider:

The child care provider must not have had

any class I violations, as defined by rule,

within the 2 years preceding its application

for designation as a Gold Seal Quality Care

provider. Commission of a class I violation

shall be grounds for termination of the

designation as a Gold Seal Qu ality Care

provider until the provider has no class I

violations for a period of 1 year.

36. It is clear RCMA did not have any C lass I violations in

the two years preceding its designation as a Gold Seal provider.

The alleged C lass I violation found in t he present action would

be grounds for termination. However, the statute does not

mandate termination, only that the C lass I is grounds for such.

Under the Department's rules, it can impose whatever sanction

best meets the offense at issue.

37. The facts of this case are simple: The Center's

employees, sent to escort a child, did not see and , therefore ,

did not take control of the child. He ended up at his aunt's

house by some unknown means and via an undetermined route. The

story ended well, but could have had bad results. Everyone

involved is sorry the incident occurred and determined that no

such thing ever happen again. Absent its Gold Seal

accreditation, the Center will not have funds to provide care for

many of the indigent children it serves.

38. The facts of this case were extremely difficult. Each

party's position was tenable, but each was based on speculation

and innuendo. There is no clear picture of what actually

happened with J.H. , so it is impossible to prove negligence or

the absence of negligence. The Department was justified in

seeking sanctions against the Center, but could not fully

substantiate its claims based on all the evidence presented.

Thus, a separate order will be entered denying the award

attorneys fees and costs in thi s case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by

Petitioner, Department of Children and Families, dismissing the

Administrative Complaint and Revocation of Gold Seal Quality Care

Designation in its entirety.

DONE AND ENTERED this 6th day of August , 2012 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of August , 2012 .

ENDNOTE

1/ Unless stated otherw ise herein, all references to Florida

Statutes shall be to the 2011 codification.

COPIES FURNISHED:

David Wilkins, Secretary

Department of Children and Families

Building 2, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Marion Drew Parker, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Gregory Venz, Agency Clerk

Department of Children and Families

Building 2, Room 204B

1317 Winewood Boulevard

Tallahas see, Florida 32399 - 0700

Eugenie G. Rehak, Esquire

Department of Children and Families

Post Office Box 60085

Fort Myers, Florida 33906

Rebecca F . Kapusta, Esquire

Department of Children and Families

9393 North Florida Avenue

Tampa, Florida 33612

Kenne th Oertel, Esquire

Timothy P. Atkinson, Esquire

Oertel, Fernandez, Bryant

and Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.