15-003284 God&Apos;S Little Blessings vs. Department Of Children And Families Status: Closed Recommended Order on Monday, November 2, 2015.

Summary: Old, unproven abuse report insufficient reason to deny child care licensure application. Hearing limited to one reason listed in denial letter.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GOD ' S LITTLE BLESSINGS,

Petitioner,

vs. Case No. 15 - 3284

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

before the Division of Administrative Hearings by its designated

Administrative Law Judge, Diane Cleavinger, on August 17, 2015,

in Tallahassee, Florida.

APPEARANCES

For Petitioner: Leslie Fudge, pro se

Apartment F - 8

216 Dixie Drive

Tallahassee, Florida 32304

For Respondent: Camille Larsen, Esquire

Assistant Northwest Regional Counsel

Department of Children and Families

2383 Phillips Road

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner ' s

application for licensure as a child care facility should be

granted.

PRELIMINARY STATEM ENT

By letter dated May 1, 2015, Respondent, Department of

Children and Families (Respondent, Department , or DCF), advised

Petitioner, God ' s Little Blessings (Petitioner), that its

application for licensure as a child care facility was denied.

The denial was based on Petitioner ' s inability to meet the

Department ' s licensure standards contained in section 402.310(1),

Florida Statutes (2015) . Specifically, the Department ' s decision

was solely based on an abuse/neglect report against Petitioner.

Petitioner disagreed with the denial and requested a formal

hearing on May 18, 2015. Thereafter, the case was forwarded to

the Division of Administrative Hearings.

At the hearing, Petitioner testified on her own behalf and

called two additional witnesses. Petitione r did not offer any

exhibits into evidence. Respondent presented the testimony of

two witnesses and offered four exhibits into evidence numbered

1, 3, 5 , and 7 , which were admitted into evidence.

The final hearin g Transcript was filed on August 31 , 2015.

After the hearing, Respondent filed a Proposed Recommended Order

on September 14, 2015. Petitioner did not file a proposed

recommended o rder.

FINDING S OF FACT

1 . Petitioner, God ' s Little Blessings, applied for

licensure as a child care faci lity on March 23, 2015. The

application was completed and submitted by Leslie Fudge, the

owner and proposed operator of the facility. The proposed

director was Adrienne Wimas (spelling uncertain).

2. After review of the application, the Department denied

Pe titioner a child care facility license on May 1, 2015. The

sole reason for the denial was contained in the Department ' s

denial letter dated May 1, 2015. The letter stated:

This letter will serve to advise you that

your Application . . . is hereb y denied based

on review of your background screening,

including the Florida Central Abuse Hotline

Record Search.

No other reason for denial was stated in the Department ' s letter.

3. While not stating the specific facts regarding the

background scre ening and abuse record search, the evidence

demonstrated that the denial was based on one confirmed report of

neglect (Abuse Report 2003 - 031849 - 01) against Ms. Fudge for

inadequate supervision of resident R.H. , and medical neglect of

resident s R.G. and J.D . Both incidents occurred at about the

same time on or about March 5, 2003, while Ms. Fudge was employed

at Tallahassee Development Center (Center) . The Center provided

residential and direct care to developmentally disabled residents

at its facility. A t the time, Ms. Fudge was employed as care

staff responsible for providing direct one - to - one care to R.H.

She was not assigned to provide care to R.G. Other than

Ms. Fudge, no witness with personal knowledge of these incidents

testified at the hearing. Consequently, many of the statements

contained in the 2003 abuse report remain hearsay which was not

corroborated by any competent substantial evidence.

Additionally, the age of the report, confusing allegations and

lack of factual basis for its findings of inadequate supervision

or medical neglect cause the abuse report to be unreliable and

untrustworthy as evidence. As such, except as found below, the

report by itself cannot form a basis for denial of Petitioner ' s

application.

4. Ms. Fudge was the onl y person who testified at the

hearing with personal knowledge about the events of March 5,

2003. She testified, and such testimony is accepted, that on or

around March 5, 2003, she was not a shift supervisor, but was

assigned as a direct care aide with " o ne - to - one " supervision of

R.H . The testimonial evidence from Ms. Fudge and other employees

of the Center during 2003 demonstrated that Tallahassee

Developmental Center employees were trained that o ne - to - one

supervision meant that " the person had always to be watched " and

" you could never leave [the person] alone. " There was no

credible evidence that the person could not be alone in the

restroom, that the staff assigned to watch the person had to be

within arm ' s length of the resident , or that such observa tion was

not varied according to the behavior plan for an individual

resident. Further , the testimonial evidence showed that staff

and Ms. Fudge knew R.H. would run away usually to hide in a

particular office, but occasionally with the police be ing called

if R.H. were to leave the building and could not be found . The

evidence did not demonstrate that R.H. behaviorally was

aggressive or dangerous to others, but only that he would run

away and hide. Finally, the testimonial evidence showed that the

facilit y was in the process of trying to wean R.H. off of

one - to - one supervision by implementing a plan of moving away from

him and permitting him times of less supervision.

5. On March 5, 2003, the testimonial evidence demonstrated

that Ms. Fudge, R.H. , and ot her residents were gathered in the

living room of the house where they lived . The phone in the

adjoining office rang and Ms. Fudge answered it. While on the

phone she could observe R.H. through the window between the

rooms. At some point, R.H. was sent to go to the restroom. It

was unclear who sent him. After finishing in the restroom, he

did not return to the living room, but " left out of the bathroom "

to another office, locked the door and hid behind the desk.

Ms. Fudge could see him in the office and called a nurse to bring

the key so that the office could be unlocked. At the time, R.H.

was not in danger and there was no evidence that demonstrated he

was in danger. There was some evidence that another staff person

mistakenly may have believed tha t R.H. had left the building.

However, the better evidence showed that Ms. Fudge knew where

R.H. was, could see R.H. in the room in which he was locked , and

that he was not in danger at the time. Given R.H. ' s behavior

plan, none of these facts establish neglect by Ms. Fudge in the

supervision of R.H.

6. There was no credible, non - hearsay evidence presented at

hearing as to the abuse report ' s allegations regarding resident

R.G. or J.D. As such, the Department ' s evidence consisted only

of an old unreliabl e abuse report consisting of uncorroborated

hearsay about an incident involving R.G. and perhaps J.D. and the

testimony of the investigator who had no personal knowledge of

the facts regarding the incident or the supervisory policies of

the Center.

7. Given these facts, Respondent has failed to demonstrate

that Ms. Fudge neglected, either in supervision or medically,

residents who were in her care. In fact, the evidence showed

that Petitioner has been caring for and/or supervising people for

many years and has the character and capacity to continue to do

so. Since the unproven abuse report was the only basis on which

the Department based its decision to deny Petitioner ' s

application, there was nothing in the record to support its

determination that Pet itioner lacked moral character or the

ability to safely operate a child care facility. Therefore,

Petitioner ' s application for such licensure should be granted.

CONCLUSIONS OF LAW

8 . The Division of Administrative Hearings has jurisdiction

over the parti es to and the subject matter of this proceeding.

§ 120.57, Fla. Stat. (2015 ).

9. The Department is the state agency charged with the

responsibility of licensing child care facilities under

chapter 402, Florida Statutes. The purpose of such licens ure is

to " protect, the health, safety, and well - being of all children

in the state who are cared for at child care facilities. "

§ § 402.301 - 319, Fla. Stat. As a consequence, a child care

license is a public trust and not a privilege. However, the

Depar tment cannot act unreasonably, arbitrarily , or capriciously

in denying requests for child care licensure.

10. Section 402.302 (1) and (2) broadly define the terms

child care and child care facility. The s ection s state :

( 1) " Child care " means the ca re, protection,

and supervision of a child, for a period of

less than 24 hours a day on a regular basis,

which supplements parental care, enrichment,

and health supervision for the child, in

accordance with his or her individual needs,

and for which a paym ent, fee, or grant is

made for care.

(2) " Child care facility " includes any child

care center or child care arrangement which

provides child care for more than five

children unrelated to the operator and which

receives a payment, fee, or grant for any of

the children receiving care, wherever

ope rated, and whether or not operated for

profit. The following are not

included . . . .

Further, sub section (14) defines the term " screening " and states:

(14) " Screening " means the act of assessing

the background of child care personnel and

volunteers 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 o f Law

Enforcement, and federal criminal records

checks through the Federal Bureau of

Investigation.

11. Se ction 402.305 establishes the criteria for the

Department ' s licensing standards. It states, in pertinent part:

(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.

* * *

(c) The minimum standards for child care

facilities shall be adopted in the rules of

the department and shall address the areas

delineated in this section.

12. Section 402.301 requires the Department to establish

minimum standards that all child care facilities must meet. The

statute provides the following:

It is the legislative intent to protect the

health, safety, and well - being of the

children of the state and to promote their

emotional and intellectual development and

care. Toward that end:

(1) It is the purpose o f ss. 402.301 -

402.319 to establish statewide minimum

standards for the care and protection of

children in child care facilities, to ensure

maintenance of these standards, and to

approve county administration and enforcemen t

to regulate conditions in such facilities

through a program of licensing.

(2) It is the intent of the Legislature that

all owners, operators, and child care

personnel shall be of good moral character.

Minimum standards for childcare personnel

shall inc lude minimum requirements as to:

(a) Good moral character based upon

screening. This screening shall be conducted

as provided in chapter 435, using level 2

standards set forth in that chapter.

See also , § 402.310, Fla. Stat.

13 . The Department has adopted rules establishing the

qualifications for licensure. See Fla. Admin. Code R. 65C -

22.008. In general, these rules require an applicant to be able

to safely care for children in a clean, healthy , and stable

environment.

14 . Florida has had a child/adult abuse reporting system

since approximately 1971. Over the years, the system has gone

through several statutory changes and used a variety of

terminology to classify these reports. Relevant to this

proceeding, i n 1995, c hapter 415 , Flor ida Statutes (1995),

provided for the child abuse reporting system in Florida. At the

time, the system was known as the central abuse registry and

tracking system. Under s ection 415.1075, Florida

Statutes (1995) , a process for challenging certain

classi fications of abuse reports was provided. This process

included a right to an administrative hearing since a person ' s

substantial interest could be impacted by an abuse report.

Chapter 95 - 228, Laws of Florida, (generally effective October 1,

1995) changed the name of the abuse registry to the central abuse

hotline .

1 5 . Around 1997, s ection 39.201(4)(a)

and (e), Florida Statutes, continued to authorize the central

abuse hotline for abuse or neglect related to children and

established the uses of the informatio n contained in the hotline.

S ec tion 39.201(4)(a) and (e) stated in part:

(4)(a) The department shall establish a

central abuse hotline to receive all reports

made pursuant to this section . . . which any

person may use to repo rt known or suspected

child abuse, abandonment, or neglect . . . .

* * *

(e) Information in the central abuse hotline

may not be used for employment screening.

Access to the information shall only be

granted as set forth in s. 415.51.

1 6 . In 1 998, s ection 39.201(4)(e) was renumbered as

subsection (6) and amended to state:

(6) Information in the central abuse hotline

may not be used for employment screening,

except as provided in s. 39.202(2)(a)

and (h). Information in the central abuse

hotl ine 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 ss. 402.301 -

40 2.319 and ss. 409.175 - 409.176.

During these years c hapter 415 provided similar abuse registry

provisions for adults. On the adult protection side,

s ec tion 415.1075 continued to provide the name - clearing hearing

requirements for persons whose substanti al interests were

impacted by these reports. There was no such provision on the

chil d protection side contained in c hapter 39.

1 7 . Chapter 2000 - 349, Laws of Florida, repealed

s e ction 415.1075 . However, what is clear from these various

amendments i s that the right to an administrative name - clearing

hearing on verified abuse reports was no longer available , since

no substantial interest of a person involved in the report was

impacted by the maintenance of such a report and the reports, by

themselves, did not constitute competent evidence in an

administrative hearing. If the reports were given such an

effect, such reports wou ld clearly involve a substantial interest

of a licensee or potential licensee and would be subject to

challeng e under c hapter 12 0 . Thus, the use by the Department of

" information " in the central abuse hotline is of limited value in

the licensure process when that information is challenged and a

formal administrative hearing is sought. In those cases , the

Department must produce e vidence of the underlying facts

cont ained in a confirmed report. See Springston v. Dep ' t of

Child. and Fam. S ervs. , Case No. 02 - 1346 ( Fla. DOAH Aug. 30,

2002; Fla. DCF Dec. 18, 2002 ).

1 8 . In this case, the Department denied Petitioner ' s

application based upon the information revealed in its background

screening of Petitioner. Th e background screening document upon

which the Department relied consisted of one report from the

central abuse r egistry completed in 2003 .

19 . As an applicant , Petitio ner must adhere to licensin g

standards established by Respondent under authority set forth in

s ection 402.305 and has the burden to establish by a

preponderance of the evidence entitlement to such license . See

Fla. Dep ' t of Transp. v. J.W. C., Co. , 396 So. 2d 778 (Fla. 1st

DCA 1981). However, the Dep artment has the burden to establish

by a preponderance of the evidence that Petitioner was guilty of

negl ect as reflected in the central abuse registry report.

Sprin g ston , supra .

20 . To satisfy her burden, Pe titioner was not required to

address the constellation of factors relevant to licensure ;

rather, the scope of the hearing was limited to the particular

concerns identified in the Department ' s denial letter. See M.H.

v. Dep ' t of Child. & Fam. Servs. , 977 S o. 2d 755, 757 - 758 (Fla.

2d DCA 2008) (remanding with instructions to adopt the ALJ ' s

Recommended Order, which correctly limited the scope of the

administrative hearing to the Department ' s reasons for denial);

L.J. v. Dep ' t of Child. & Fams. , Case No. 13 - 4666 (Fla. DOAH

Aug. 25, 2014) (observing that applicant was required to address

only those issues or concerns raised in the notice of intent to

deny).

2 1 . In this case, Respondent has failed to demonstrate that

Ms. Fudge neg lected person s placed in he r care. Since the

unproven abuse report was the only basis on which the Department

based its decision to deny Petitioner ' s application, there was

nothing in the record to support its determination that

Petitioner lacked moral character or the ability to s afely

operate a child care facility. Further, the evidence showed that

Petitioner has been caring for and/or supervising people for many

years and has the character and capacity to continue to do so.

Given these facts, Petitioner ' s application for licens ure as a

child care facility should be granted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is :

RECOMMENDED that Petitioner ' s application for licensure as a

child care facility is granted.

DONE AND ENTERED this 2nd day of November , 2015 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

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 2nd day of November , 2015 .

COPIES FURNISHED:

Paul Sexton , Agency Clerk

Department of Children and Families

1317 Winewood Boulevard , Building 2, Suite 204

Tallahassee, Florida 32399 - 0700

(eServed)

Camille Larson, Esquire

Department of Children and Families

2383 Phillips Road

Tallahassee, Florida 32308

(eServed)

Leslie Fudge

God ' s Little Blessings

Apartment F - 8

216 Dixie D rive

Tallahassee, Florida 32304

Michael Andrew Lee, Esquire

Department of Children and Families

2383 Phillips Road, Room 231

Tallahassee, Florida 32308 - 5333

(eServed)

Rebecca Kapusta, General Counsel

Department of Children and Families

1317 Winewood Bo ulevard, Building 2, Room 204

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children and Families

1317 Winewood Boulevard, Building 1, Room 202

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEP TIONS

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.