15-005820 Nikki Henderson, D/B/A Henderson Family Day Care Home vs. Department Of Children And Families Status: Closed Recommended Order on Monday, May 2, 2016.

Summary: Ms. Henderson proved that she had sufficient moral character to get family day care license. She rebutted DCF's insufficent evidence. DCF relied upon hearsay investigative reports. Hearsay cannot support a finding of fact.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NIKKI HENDERSON, d/b/a HENDERSON

FAMILY DAY CARE HOME,

Petitioner,

vs. Case No. 15 - 5820

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMME NDED ORDER

John D.C. Newton, II, Administrative Law Judge, of the

Division of Administrative Hearings, conducted the final hearing

in this matter on December 21, 2015, by video tele conference at

La keland and Tallahassee, Florida .

APPEARANCES

For Petitione r: Nikki Henderson , pro se

Henderson Family Day Care Home

8433 Split Creek Circle

Lakeland, Florida 33809

For Respondent: Cheryl D. Westmoreland, Esquire

Department of Children and Fam ilies

1055 U.S. Highway 17 North

Bartow, Florida 33830

STATEMENT OF THE ISSUE

Should the Petitioner, Nikki Henderson, d/b/a Henderson

Family Day Care Home, be granted a license to operate a family

day care home pursuant to section 4 02.313 (3) , Florida Statutes

(2015) 1 / because she does not satisfy the screening provisions of

sections 402.305(2) and 402.3055 ?

PRELIMINARY STATEMENT

By letter dated September 2, 2015, the Respondent,

Department of Children and Families (Depar tment), proposed

denying Ms. HendersonÓ s application to operate a family day care

home. The letter does not identify a requirement imposed by

statute or rule that Ms. Henderson failed to meet. The letter

of denial identifies five ÐIntake ReportsÑ as reas ons for the

denial. Ms. Henderson timely requested a hearing.

At the final hearing, Ms. Henderson testified on her own

behalf and presented the testimony of Sharon Key Stanley .

Ms. HendersonÓs Exhibits 4, 5 , and 7 were admitted into

evidence. The Dep artment presented testimony of Nancy Ebrahimi.

The Department E xhibits A and C through G were admitted into

evidence. No one requested a transcript of the hearing. The

period for filing Proposed Recommended Orders was extended until

January 8, 2016.

T he Department timely filed a Proposed Recommended Order.

Ms. Henderson filed a document titled ÐNotice of Proposal.Ñ It

is accepted as a proposed recommended order. Ms. HendersonÓs

notice contends that the Department relied solely upon hearsay

evidence and proposes that the Department issue her a

provisional license. Subsequently the undersigned issued an

O rder directing the parties to file memoranda of law addressing

four legal issues. The parties filed them. The proposed

recommended orders and suppl emental memoranda have been

considered.

FINDING S OF FACT

1. Ms. Henderson is the mother of four children. She has

been a good parent, seeing to their education. She volunteer s

as the minister of m usic in a church. She has also taken

college courses. M s. Henderson wants to start a family day care

center.

2. On September 12, 2014, the Department granted

Ms. Henderson an exemption from disqualification from working

with children and other vulnerable populations due to a criminal

conviction . This mean s that just over a year before the

hearing , the Department determined that Ms. Henderson proved by

clear and convincing evidence that she was rehabilitated and

should not be disqualified from employment. § 435.07, Fla.

Stat. In th e exemption proce ss , the Department could consider

the personÓs history since the disqualifying criminal offense

and Ðany other evidence or circumstances indicating that the

employee will not present a danger if employment or continued

employment is allowed.Ñ § 43 5 .07(3)(a) Fla. Stat.

3 . A family da y care home is an occupied residence, in

which c hild care is regularly provided for payment . The

children served under the age of 13 and from at least two

unrelated families . § 402.302 (8), Fla. Stat.

4 . The Department is the lice nsing authority for family

day care h omes. It considers an applicantÓs criminal history,

as well as any reports concerning abuse or neglect maintained in

the DepartmentÓs statewide database, Florida Safe Families

Network (FSFN), formerly known as HomeSafe Net , in licensing

decisions.

5 . The Department received Ms. HendersonÓs completed

application to operate a family day care home on June 25, 2015.

By letter dated September 2, 2015, and served September 4, 2015,

the Department announced its intent to den y the application

based upon two verified reports of inadequate supervision of her

children a nd three report s of complaints all closed with Ð n o

indicators Ñ or Ðnot substanti a tedÑ conclusions. The reports

named Ms. Henderson as the caregiver responsible fo r the

children involved .

6 . When using either HomeSafeNet or FSN , investigators

input information as they collect it. But they do not input all

of the information immediately. The information is much more

than what the investigators have observed. M os t of the

information is recitations of statements of others about what

the others observed.

7 . The FSFN and HomeSafe Net databases contain records of

the following r eports involving Ms. Henderson : 199 9 - 089863 - 01

(Ex. C), 2002 - 136612 - 01 (Ex. D), 2004 - 420 815 - 01 (Ex. E), 2005 -

323618 - 01 (Ex. F), and 2012 - 126218 - 01 (Ex. G). These are the

reports that the Department relies upon to support denying

Ms. Henderson a license.

8 . The reports set forth activities of the agencyÓs

investigators , stating what they di d. What the investigators

did was interview people and report what those people said or

what they said someone else said . Th e reports contain very

little directly observed by the reporters.

9 . The information contained in the reports that the

Departme nt relies upon is largely hearsay or hearsay reports of

hearsay. The reports consist mostly of summaries of records

reviewed by the reporter or summaries of statements by other

individuals. They are not reports of information about which

the reporter has direct knowledge. The reports do not identify

who the investigator obtained the information from. In short

all of the statements in RespondentÓs E xhibits C through G about

anything Ms. Henderson did or did not do are hearsay recitations

of statements ma de to and summarized by the reporters or

summaries of documents reviewed. §§ 90.801 & 90.802 , Fla. Stat .

Hearsay alone cannot support a finding of fact.

§ 120. 57(1)(c) , Fla. Stat.

10 . The reports also are not competent or persuasive

evidence that the assertions in them are accurate.

Ms. Henderson disputes the reports. Her live testimony, subject

to cross examination , is more persuasive than the words of the

reports.

11 . The reports do not satisfy the requirements for the

business record hearsay e xception of sect ion 90.803(6), or the

public record exception of section 90.803(8). See , e.g. , Lee v.

Dep't of HRS , 698 So. 2d 1194, 1200 (Fla. 1997) (investigative

report of pregnancy of woman with a disability residing in a

state facility not subject to the public record exception). See

also , Brooks v. State , 918 So. 2d 181, 193 (Fla. 2005) , c ert.

d en . , Brooks v. Fla . , 547 U.S. 1151, 126 S. Ct. 2294, 164 L. Ed.

2d 820 (2006); M.S. v. Dep't Child . and Fam s . , 6 So. 3d 102

(Fla. 4th DCA 2009).

1 2 . Applica tion of the hearsay rule is no mere legal

technicality. The hearsay rule is one of the oldest and most

effective means of ensuring decisions that determine people's

lives and fortunes are based on reliable information. Florida's

Fifth District Court of A ppeal described the importance of the

rule as follows:

Rules governing the admissibility of hearsay

may cause i nconvenience and complication in

the presentment of evidence [,] but the

essence of the hearsay rule is the

requirement that testimonial assertio ns

shall be subjected to the test of cross

examination. 5 Wigmore on Evidence, § 1362

(Chadbourne Rev. 1974). As stated by

Professor Wigmore, the hearsay rule is "that

most characteristic rule of the Anglo -

American law of evidence -- a rule which may

be esteemed, next to jury trial, the

greatest contribution of that eminently

practical legal system to the world's

methods of procedure." 5 Wigmore on

Evidence, at § 1364.

Dollar v. State , 685 So. 2d 901, 903 (Fla. 5th DCA 1996).

13 . A complaint on July 18 , 1999 , triggered the

investigation resulting in Report 1999 - 089863 - 01 (update date

November 16, 2000). (Dept. Ex. C). The report summarizes the

investigation of an allegation that Ms. Henderson (then Nikki

Stanley) Ðleft [her child] Deuteronomy in his c arrier sear [ sic ]

on the steps of the alleged DadÓs home,Ñ knocked on the door and

drove away. The allegations continue that the adults were

inside and that the alleged fatherÓs mother found the child on

the steps.

14 . Ms. Stanley, who testified and wa s cross - examined at

the hearing, went with Ms. Henderson to leave the child at the

f atherÓs home. Ms. Stanley personally placed the child in the

hands of an adult at the house . Ms. Stanley and Ms. Henderson

also delivered P ampers and milk . Ms. Henderson Ós credible and

consistent position has always been that she did not leave the

child unattended at the house where the childÓs father lived .

The testimony of Ms. Stanley and Ms. Henderson is consistent

with some statements in the report and more credible and

persuasive than the allegations recited in the report.

1 5 . The Department closed the investigation with verified

findings of inadequate supervision and no indicators of physical

injury. The Department did not provide Ms. Henderson an

opportunity fo r a hearing to contest the findings.

1 6 . The Department filed a dependency petition against

Ms. Henderson because of the report. It gave her a case plan,

requiring the provision of protective services supervision by

the Department. The Department did n ot remove the child from

Ms. HendersonÓs care.

1 7 . The Department did not prove by the preponderance of

the evidence that Ms. Henderson left Deuteronomy alone on the

steps on July 18, 1995. She did not.

1 8 . Report number 2002 - 136612 - 01 chronicles the

in vestigation of allegations received on August 23, 2002 ,

described as ÐPhysical Injury,Ñ Substance Exposed Child,Ñ

Ð Inadequate Supervision,Ñ and ÐEnvironmental Hazards.Ñ (Dept.

Ex. D). The report is a confusing document and contains no

information about e nvironmental hazards or a child being exposed

to a substance. It is not a credible report of anything

involving alleged harmful conduct by Ms. Henderson or conduct

endangering a child. In fact although the case started as an

investigation of her, it ende d with the suspected father of the

child identified as the possible perpetrator , not Ms. Henderson .

1 9 . Representative paragraphs are reproduced here.

01 ALLEGATION NARRATIVE:

ON A RECENT NIGHT, THE MOTHER BROKE WINDOWS

AND CAUSE D PROBLEMS AT THE HOM E OF THE

ALLEGED PATERNAL GRANDMOTHER, BARBARA BROWN ,

WHERE GEORGE [the child apparently involved]

W A S AT THE TIME. THIS OCCURRED ABOUT

3:00 A.M. MOTHER HAD CALLED THE ALLEGED

FATHER, ALVIN WALLACE (MS. B R OWNÓS SON/NO

DNA TEST DONE YET TO DET E RMINE PATE RNITY),

EARLI E R IN THE EVENING . SHE TOLD HIM SHE

WAS G O ING T O JAIL, AND SHE TOLD HIM TO GET

GEORGE, WHICH HE DID AT 3:00 A.M., MOTHER

SHOWED UP WANTING GEORGE. LAW ENFORCEMENT

W ERE CALLED. THEY ADVISED THE MATERNAL

GRANDMOTHER , SHARON STANLEY, TO LET

M R WALLCE AND MS. BROWN KEEP GEORGE. MOTHER

AND GEORGE LIVE AT ADDRESS A WITH THE

MATERNAL G RANDMOTHER, ABOUT WHOM CONCERN WAS

EXPRES S ED BECAUSE SHE HAS SEIZURES.

PATERNAL GRANDMOTHER HAS NOW GOTTEN AN

INJUNCTION AGAINST MOTHER. MOTHER DID NO T

HAVE TO GO TO JAIL. ITS UNKNOWN WHY SHE

THOUGHT SHE HAD TO GO. MOTHERÓS LIFESTYLE

AND BEHAVIOR ARE SAID TO BE

Ð ÐQUESTIONABLE. ÑÑ MS. BROWN AND MR. WALLACE

LIVE AT ADDRESS B.

24 HOUR.

02 ALLEGATION NARRATIVE:

RIGHT NOW , GEORGE IS AT THE HOME OF TH E

ALLEGED PATER NAL GRANDMOTHER, BARBARA BROWN,

ADDRESS B. NO DNA TEST HAS BEEN DONE. SO

IT HAS NOT BEEN DETERMINED TH [A] T

MS. BROWNÓS SON IS GEORGEÓS FATHER. GEORGE

SPENT THE WEEKEND AT MS. BROWNÓS HOME, AND

MS. BROWN NOW REFUSES TO GIVE GEORGE BACK TO

THE MATERNAL G RANDMOTHER.

03 ALLEGATION NARRATIVE:

MR. WALLACE SHOOK GE ORGE TODAY AROUND 7 PM.

MR. WALLACE WAS OUTSIDE WITH G E ORGE. GEORGE

WAS CRYING. MR. WAL LACE THREW GEORGE IN O

THE HAIR [ SIC ] AND SHOOK HIM. IT IS UNK N OWN

IF GEORGE SUFFERED A NY INJURIES AFTER BE ING

SHOOK. MR. WALLACE HAS A HISTORY OF SEL LING

AND USING COCAINE AN D MARIJUANA. HE WIL L

SELL THE D RUGS FROM HIS HOME A ND ON THE

STREETS.

IMMEDIATE.

INVESTIGATIVE DECISI O N SUMMARY:

BACKGROUND INFORMATI 0 N : THE FAMILY HAS ONE

PRIOR FROM 1999 WHER E PR OTECTIVE SERVICES

WERE INVOLVED DUE TO VERIFIED INADEQUATE

SUPERVISION. ADJUDI CAT I ON WAS WITHELD

[sic] . THE MOTHER AND HER T WO CHILDREN

INVOLVED IN THE PRIO R LIVE WITH THE

GRANDPARENTS AND THE NEW BABY IN LAKELAND .

PS CLOSED IN 2001 . THE MOTHER HAS A

C RIMINAL HISTORY THAT INCLUDES A BATTERY

CHARGE FROM 2002. C ONCERNS OVER THE ALL EGED

F A THER ALVIN WALLACE. DUALING [ sic ]

INJUNCTIONS

SUBJECT INFORMATION: THE CASE APPEARS TO BE

CUSTODY RELATED . THERE WERE CONCERNS OVE R

THE ALLEGED FATHER A LVIN WALLACE . DUALING

[ sic ] INJU N CTIONS BETWE E N MOM AND

PROS P ECT I V E FATHER WERE FILED AN D BOTH

DISPUTED OVER THE CU STODY OF THE CHILD.

JUDGE SMITH GRANTED AN INJUNCTION AGAINS T

THE ALLEGED FATHER A ND GAVE CUSTODY TO T HE

MOTHER. LATER, THE RESULTS OF TH E DNA

SCREEN SHOWED THAT MR. WALL ACE WAS NOT THE

FATHER. HE IS NO LO NGER A THREAT AND DO ES

NOT HAVE CONTACT WIT H THE BABY. SHAKING OF

CHILD ALLEGATION WAS BOGUS. LEGAL CONTAC T:

JUDGE SMITH OF D/V C OURT GAVE CUSTODY TO MOM

AND GRANTED INJUNCTI ON AGAINT MR. WALLAC E

W HO TURNED OUT NOT TO BE THE FATHER AFTER A

DNA TEST.

FAMILY AND COMMUNITY SUPPORT: MOM HAS DV

I NJUNCT IO N AND FAMILY SUP P ORTS. SERVIC E S

AND REFERRALS: I.E NOTIFIED. CASE APPE ARS

TO HAVE BEEN CUSTODY RELATED. MR. WALLAC E

WAS LATER PROVED NOT TO BE THE FATHER AND NO

LONGER HAS ANY CONTA CT OR RIGHTS TO THE

CHILD WHO LIVES WITH THE MOTHER, GPÓS AND

OTHER SIBLINGS. HE IS NO LONGER A POSSIBLE

THRE A T TO THE CHILD. CLO SE CASE AS BACKLOG.

CONVERTED ICSA SAFET Y ASSESSMENT 06/15/2 006

*ICSA INIT I AL OVERALL SAF ETY ASSESSMENT*

RISK IS LOW. ALLEGE D PERP [Mr. W allace] WAS

DETERMINED NOT TO BE THE DAD AND IS NO

LONGER H A VING CONT A CT WITH CHLD. *ICSA

UPDATED OVERALL SAFE TY ASSESSMENT* RISK IS

LOW: ALLEGED PERP W AS DETERMINED NOT TO BE

THE DAD AND IS NO LO NGER HAV I NG CONTACT WITH

CHILD.

20 . The Department closed the investigation with no

indicators for any of the alleged mistreatment. The report did

not conclude that Ms. Henderson acted improperly or did not act

when she should have.

2 1 . The Department initiated case number 2004 - 420815 - 01 on

September 29, 2004, in response to an allegation that

Ms. Henderson was leaving her four children at home alone at

night. (Dept. Ex. E). At the conclusion of the investigation,

the Department determined that there were no indicators of

inadequate supervision. The summary concluded: ÐThe Mother has

made adequate arrangements for the children while she works thus

n ot causing a concern fo r safety and/or permanency.Ñ

2 2 . On February 8, 2005, the Department received a

compla int alleging that Ms. Henderson was leaving the children

at home alone and coaching them to tell people that she was

home, but asleep. The Department started an investigation

resulting in report number 2005 - 323618 - 01 (Dept. Ex. F).

2 3 . The Department c losed this investigation with verified

findings of inadequate supervision . It filed another dependency

petition to obtain co urt - ordered protective services

s upervision.

2 4 . The court ordered a case plan that included a

requirement to complete a parentin g program. During this open

case, Ms. Henderson demonstrated some lack of responsiveness to

the Department Ós preferred eight - we ek in - home parenting program.

She took a one - day program at the Polk County Courthouse

instead . T he court , whose order Ms. Hen derson was to comply

with, accepted this class as satisfying the parenting program,

over the DepartmentÓs objection. Bas ically the Department is

second - guessing the courtÓs ruling and treating Ms. Henderson as

if she had not met the courtÓs requirements w hen she did.

2 5 . On May 31, 2012, Ms. Henderson reported to the

Department that a school intern inappropriately touched the

breasts of Ms. HendersonÓs 1 4 - year old daughter. This initiated

report number 2012 - 126218 - 01 . (Dept. Ex. G). Ms. Henderson was

not the subject of the investigation. The intern was.

Ms. Ebrahimi was the child protective investigator supervisor at

the time of this report. She has personal knowledge of some of

the facts in that report and testified about them .

26 . Ms. Henders on was very upset about the incident . She

acted vigorously and promptly to protect her daughter.

Ms. Henderson immediately picked up her daughter and reported

the incident to the Department and the school. She insisted

that the school remove her daught er from the intern Ós class.

She also arranged for her daughter to attend a different school

the next year. Only one week was left in the current school

year. She obtained a temporary injunction against the intern.

Ms . Henderson also sought to obtain a permanent injunction to

protect her daughter. Ms. Henderson did everything lawful that

a loving protective parent could do for her child.

2 7 . The day after the incident Ms. Henderson spoke to

Detective Rose. He told Ms. Henderson that the authorities di d

not perceive sufficient evidence to take actions to protect her

daughter , including obtaining an injunction.

2 8 . Even Ms. Ebrahimi concede s that Ms. Henderson was very

cooperative with the Department and protective of her child.

2 9 . Ms. Ebrahimi faul ts Ms. Henderson for, in

Ms. EbrahimiÓs view, not following through on the permanent

injunction and failing to return phone calls from the

DepartmentÓs i nvesti gator. Ms. Henderson did not receiv e calls

or messages from the investigator. Ms. Ebrahimi doe s not have

personal knowledge of whether the investigator called

Ms. Henderson. Ms. HendersonÓs testimony about not rece i ving

calls from the investigator is more credible and persuasive than

the cryptic notes in the report .

30 . Ms. HendersonÓs actions were entirely reasonable and

protective of her daughter. A person in authority told her that

she could not obtain an injunction . S o she took no further

actions on that front. Ms. Henderson acted immediately to have

the offender removed from contact wit h her child. S he arranged

for her child to be transferred to a different school.

3 1 . The DepartmentÓs investigative summary itself shows

the reasonableness of Ms. HendersonÓs actions and the difficult

circumstances she faced , including a lack of support from

responsible authorities, when her 14 - year - old daughter reported

an intern fondling her breasts at school. The report says:

The child states that the intern touched her

breast . She disclosed that she told the

teacher who did nothing about it. Stated

she also told her mother who made a report

to law enforcement. The intern is no longer

in the childÓs classroom but is still at the

school per the mother. CPI to update as

more information is received.

UPDATE: Risk low.

3 2 . S everal statements in the report s ubstantiat e

Ms. Hen d ersonÓs recall of events and buttress the determination

that she is more persuasive than the document. It also

demonstrate s that the alleged calls were for the bureaucratic

process of closing the case , not furthering the inve stigation to

protect Ms. HendersonÓs daughter.

3 3 . In addition, it is difficult to imagine what

additional information the DCF investigator could obtain from

Ms. Henderson. She had already told DCF all she knew about the

assault.

3 4 . The summary also supports Ms. HendersonÓs testimony

that a police officer told her the police would not pursue the

case. It states: Ð Other childre n reportedly also reported

witnessing, then recan t ed to Lakeland Police Detective.

Lakeland Police not pursuing fu r ther, did not find alleged

victim credible.Ñ

CONCLUSIONS OF LAW

3 5 . Sections 120.569 and 120.57(1) grant DOAH jurisdiction

over the parties to and the subject matter of this proceedi ng.

3 6 . Ms. Henderson has the ultimate burden of proving that

she is entitled to the license being sought. Dep Ó t of Banking

and Fin ., Div . of Sec . and Investor Prot . v. Osborne Stern and

Co. , 670 So. 2d 932, 934 (Fla. 1996). See also Mayes v. Dep Ó t

of Child . & Fam. Serv s . , 801 So. 2d 980 (Fla. 1st DCA 2001).

37 . Section 402.312(1) r equires a family day care home to

be licensed. In addition, all household members over the age of

12 are required to undergo a screening process, which includes a

criminal history check and a review of the DepartmentÓs abuse

records.

3 8 . The Department a rgues that since section

39.202(2)(a)5 . , Florida Statutes, makes the abuse and neglect

reports available to the DepartmentÓs licensing staff, it

somehow creates a hearsay exception for them. The Department

relies upon the statutory construction principle that the

Legislature does not enact meaningless statutes. It

extrapolates from there that the only explanation is that the

Legislature intended to create a hearsay exception. Williams v .

DepÓt Child. & Fam . Servs. , Case No. 06 - 3030 (Fla. DOAH Feb. 2,

200 7; Fla. DCF May 18, 2017). The R ecommended O rder in Williams

recites the theory that the Department relies upon.

3 9 . T hat theory is incorrect for two reasons. The first

is that treating the reports as creating a hearsay exception is

not the only or th e most rational explanation for adoption of

the statute . I t is irrational for the Legislature , which

codifies hearsay exceptions in the evidence code , to create an

implied exception in a different chapter of the statutes.

40 . Second , implying an except ion puts the

constitutionality of the statute at risk because the

verification process , if it determined things such as licensure ,

would den y the fundamental elements of due process Î notice and

a meaningful opportunity to be heard. GE Capital Corp. v.

Sh attuck , 132 So. 3d 908 (Fla. 2d DCA 2014) . It could also mean

that the Department made a decis i on substantially affecting

Ms. Hend e rson without providing a clear point of entry to a

formal hearing under FloridaÓs Administrative Procedure Act .

See Henry v. Fla . Dep't of Admin., Div. of Ret. , 431 So. 2d 677 ,

679 (Fla. 1st DCA 1983) .

4 1 . Whenever possible , statutes should be construed to

avoid making them unconstitutional . Walker v. Bentley , 660 So.

2d 313 , 320 (Fla. 2d DCA 1995) .

4 2 . The more rational interpretation of the statute is

that the Legislature intended for the Department to use the

information in the reports to identify witnesses to c o n tact and

documents to review. This , the Department did not do. 2/

4 3 . The issue at this point is moot sin ce Ms. Henderson

proved by the preponderance of competent and substantial

evidence that the reports , submitted as Department Exhibits C

through G are not correct or else cannot be considered .

4 4 . Exhibit E concluded that the complaint was not

supported and that Ms. Henderson made appropriate arrangements

for her children when she was working. It contains no verified

finding.

4 5 . Exhibit F ., although unrebutted is, however , hearsay

whic h cannot alone be the basis for a finding of fact. 3/

4 6 . Also , this isolated incident eleven years ago does not

make Ms. Hend e rso n a person who lacks moral character.

4 7 . Section 402.312(1) prohibits operation of a family day

care home without a license . Ð Child care personnel in family

day care homes shall be subject t o the applicable screening

provisions contained in ss. 402.305(2) and 402.3055. Ñ

§ 402.31 3 (3), Fla. Stat. This screening requirement is what the

Department relies upon to deny Ms. Henderson a license.

4 8 . As the owner and operator of a family day care center,

Ms. Henderson will unavoidably be in her home providing care to

the children. This means she must meet the screening standards

of sections 402.3 0 5(2) and 402.3055. Section 402.305 (1)

requires the Department to adopt rules establish ing licensing

s tandards for f amily day care ce nters.

4 9 . Section 402.305(1)(c) directs the Department to

include specific standards in the rules. The standards include

good moral character based upon the screening. The section says

the screening should be level two screening as set forth in

c hapter 435 , Florida Statutes .

50 . Section 402.305(2)(a) requires the Department to adopt

minimum standards by rule. I t too says that the determination

of good moral character shall be based upon the level two

screening stand ards of chapter 435 .

5 1 . The Department does not assert that Ms. Henderson

should be denied a license on account of failing to satisfy a

rule. Th e Department relies solely upon statutes. The

Department m aintains that Ms. Henderson did not demonstrate

Ðg ood moral character based upon screening.Ñ More s pecifically

the Department asserts that the two verified reports and three

unverified reports prove that Ms. Henderson does not have good

moral character.

5 2 . The level two standards relied upon by the D epartment

are to determine if a person has :

been arrested for and are awaiting final

disposition of, have been found guilty of,

regardless of a djudication, or entered a

plea of nolo contendere or guilty to, or

have been adjudicated delinquent and the

recor d has not been sealed or expunged for,

any offense prohibited under any of the

following listed criminal offenses or

similar law of another jurisdiction: [list

of 48 criminal laws].

§ 435.04, Fla. Stat.

5 3 . At some point in her life, Ms. Henderson was convicted

of, pled guilty , or pled no contest to one or more of the listed

offenses. But the Department granted her an exemption from

disqualifications flowing from failure to pass the level two

screen ing .

5 4 . Section 402.312(15) creates a broader conc ept of

screening. It says screening includes, but is not limited to,

considering employment history and criminal records . The

Department relies on the Ðbut not limited toÑ language. The

Department has not stated what good moral character is.

5 5 . The Department gave great weight in its decision and

its positi o n in this proceeding to a n alleged history or pattern

of inadequate supervision. The evidence and the facts do not

present a pa t t ern of inadequ at e supervision. The evidence

showed that three of the reports were inaccurate. Report 1999 -

089863 - 01 saying Ms. Henderson le ft her child on the FatherÓs

door step is not accurate. Report 2002 - 136612 - 01 did not even

involve inadequate supervision. Report 2004 - 420815 - 01 was not

even a verified report. T he factual claims of r eport 2005 -

32 3 618 - 01 were not proven. Report 2012 - 126218 also is not an

inadequate supervision case. Ms. Henderson was not even the

subject of it. DCF adds it to the reasons for denying the

license because it feels like she did not cooperate in

investigating the intern who touched her young daughterÓs

breast. T he fact is that Ms. Henderson did everything a

reasonable person would do in her situation.

5 6 . A pattern is Ð something that happens in a regular and

repeated way .Ñ "Patter n." Merriam - Webster.com , Merriam - Webster

( 27 Apr. 2016 ) . The facts recited in the recommended order in

Dep artment of Child ren a Fam ilies v. Vestal , Case No. 99 - 1969

(Fla. DOAH Nov. 2, 1999; Fla. DCF February 7, 2000) , which

den ie d issuance of a commercia l day care facility license , are

good example s of facts that show a pattern of behavior amounting

to a sign that an applicant did not have good moral character .

Over the course of several years , the husband who would be

participating in the facility , held and used two different

social security cards and driverÓs licenses. This made

conducting a background check very difficult. The wife who

applied for the license never told DCF about the two sets of

identifying documents. This case is not like that case . This

case is more like Department of Health and Rehabilitative

Services v. A.S. , 648 So. 2d 128 (Fla. 1995). There , the

Florida Supreme Court held that A.S.Ós leaving his six - year - old

son alone on at least six occasion s for an hour or hour and one -

half at a time , and once for six hours , was not abuse or

neglect.

5 7 . Ms. Henderson proved by a preponderance of the

evidence that she did not have a historical pattern of

inadequate supervision of children . Ms. Henderson proved by a

preponderance of the ev idence that she was of good moral

character.

5 8 . Ms. Henderson proposed that the Department issue her a

provisional license . The Department cannot do that. Florida

Administrative Code Rule 65C - 20.008(4) prohibits issuing a

provisional license as an in itial license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Respondent, Department of

Children and Families , enter a f inal o rder granting the

application of Petitioner , Niki Henderson d/b/a Hen derson Family

Day Care Home , to operate a family day care home.

DONE AND ENTERED this 2nd day of May , 2016 , in Tallahassee,

Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrati ve 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 2 nd day of May , 2016 .

ENDNOTE S

1 / All references to the Florida Statutes are to the 2015

codification unless otherwise noted.

2/ This contrasts markedly with the DepartmentÓs presentation in

DaddyÓs Daycare Early Learning Academy, Inc. v. Dep artment of

Children and Fam ily Services , Cas e No. 15 - 3737 ( Fla. DOAH

March 25, 2016 ; Fla . DCF Apr. 27, 2016 ) . In that proceeding ,

the investigators who wrote the reports testified.

3/ § 120.57(1)(c) , Fla. Stat.

COPIES FURNISHED:

Cheryl D. Westmoreland, Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Flo rida 33830

(eServed)

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Nikki Henderson

Henderson Family Day Care Home

8433 Split Creek Circle

Lakeland, Fl orida 33809

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Rebecca Kapusta, General Counsel

Department of Children and Families

Building 2, Room 204

13 17 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

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 Ord er should be filed with the agency that

will issue the Final Order in this case.