16-002492PL Pam Stewart, As Commissioner Of Education vs. Diana Castella Status: Closed Recommended Order on Friday, March 17, 2017.

Summary: The Commissioner proved that Respondent violated her duty under sec. 1012.795 (1) (b) to immediately report suspected child abuse and violated written directions not to discuss the ongoing investigation with the local media, warranting one-year probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 16 - 2492PL

DIANA CASTELLA,

Respondent.

_______________________________/

RECOMMENDED ORDER

A formal hearing pu rsuant to s ection 120.57(1), Florida

Statutes (2016) , 1/ was conducted by video tele conference on

January 10, 2017 , before Administrative Law Judge Robert L.

Kilbride of the Division of Administrative Hearings ( " DOAH " ) in

Miami and Tallahassee, Florida.

APP EARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E

Fort Lauderdale, Florida 33316

For Respondent: Douglas Elias Ede, Esquire

Schiller, Kessler and Gomez, P.A.

Second Floor

7501 West Oakland Park Boulevard

Miami, Florida 33157

STATEMENT OF THE ISSUE S

Whether Respondent ' s educator ' s certificate should be

sanctioned for an alleged violation of s ection 1012.795(1)(b),

Florida Statutes, in that Respondent knowingly failed to report

actual or suspected child abuse as alleged in Petitioner ' s

Amended Administrative Complaint.

Whether Respondent ' s educator ' s certificate should be

sanctioned for an alleged violation of s ection 1012.795(1)(j), in

that Respondent violated the Principles of Professional Conduct

for the Education Profession prescribed by State Board of

Education rules as alleged in Petitioner ' s Amended Administrative

C omplaint.

PRELIMINARY STATEMENT

On Ma rch 16 , 2016, Pam Stewart, Commissioner of the

Department of Education ( " Petitioner " or " Commissioner " ), filed

an A dministrative C omplaint against Diana Castella ( " Respondent "

or " Castella " ), alleging a violation of sec tion 1012.795(1)(b)

and related rules.

On April 14 , 2016 , Respondent filed an Election of Rights

form, disputing allegations in the Administrative Complaint and

request ing a hearing pursuant to section 120.57(1).

On May 5, 201 6 , the case was referred to DO AH for assignment

to an Administrative Law Judge.

The case was noticed for hearing on July 1, 2016. On

September 15, 2016, Petitioner filed a M otion to A mend

A dministrative C omplaint , adding allegations of violations of

both section s 1012.795(1)(b) and 10 12.795 (1)(j) and implementing

rules.

On September 20, 2016 , an O rder granting Petitioner ' s M otion

to A mend Ad ministrative C omplaint was filed. After two

continuances were granted in response to motions from the

parties, the case was heard January 10, 2017 , before

Administrative Law Judge Robert L. Kilbride.

Petitioner presented the testimony of Carmen Gutierrez,

Ebony Dunn, and Sonya Durden. Petitioner also presented the

testimony of Marilyn Philogene by way of a deposition taken on

January 4, 2017 , and f iled on January 13, 2017. Petitioner ' s

E xhibits 1 through 12 were admitted into evidence.

Respondent testified. Respondent ' s E xhibits A through C

were admitted into evidence, Respondent ' s E xhibit A being the

telephonic deposition of Shalonda Sylvester ta ken on December 21,

2016.

The official T ranscript of the hearing was filed with DOAH

on January 24, 2017. On January 30, 2017, the parties filed a

j oint m otion to extend time to file their proposed recommended

orders, requesting an extension until Februa ry 20, 2017. An

O rder granting the extension of time was entered on January 3 1,

2017.

Proposed recommended orders were timely filed by the parties

and were given due consideration in the preparation of this

Recommended Order.

FINDING S OF FACT

Based on the evidence presented and the record as a whole,

the undersigned makes the following findings of material and

relevant facts:

P arties ' S tatement of A greed F acts

1. Respondent holds Florida Educator ' s Certificate 632878,

covering the area of e lementary e duca tion, which is valid through

June 30, 2017.

2. At all times pertinent hereto, Respondent was employed

as a part - time i nterventionist t eacher at Brownsville Middle

School ( " BMS " ), Miami - Dade County School District.

3. Respondent has been a certified teach er for 25 years.

4. On March 9, 2015, Respondent was informed by Y.H., a

sixth - grade female student, that her stepfather comes into her

room and lays on top of her with his clothes on without touching

her in any inappropriate way, when her mother was not present.

5. On March 9, 2015, Y.H. also informed Respondent that her

stepfather pushed her toward a wall causing her to fall into a

chair and then he pulled her by the hair.

6. Respondent went to C ounselor Sonya Durden ' s office on

March 9, 2015 , to discu ss what she had heard from Y.H. and the

other two students.

7. Respondent did not immediately report the student ' s

accusation on March 9, 2015 , to the D epartment of Children and

Families or the Child Abuse Hotline.

F acts A dduced at the H earing

8. The Com missioner is responsible for investigating and

prosecuting allegations of misconduct against individuals holding

educator ' s certificates under s ection 231.2615, Florida Statutes.

9. D uring Castella ' s 25 years of teaching, she testified

that she had never received training concerning suspected child

abuse or related reporting requirements. This testimony is

rejected. The more persuasive and credible evidence revealed

that all school employees at BMS, with no exceptions, received

regular training at the be ginning of each school year, which

includes their reporting duties when child abuse is suspected.

10. The more persuasive evidence also demonstrated that

various posters on child abuse reporting were posted around the

school to remind teachers at BMS of t heir reporting requirements

in cases of suspected child abuse. Respondent ' s Exhibits B and C

are examples of those posters.

11. Respondent's Exhibit B is a colorful poster with the

title Child Abuse Look for the Signs . The poster gives

information on va rious signs of physical and sexual abuse , as

well as the procedure to follow when a child speaks of abuse.

The evidence revealed that this poster was posted at the

designated faculty sign - in area at BMS at all times relevant to

this incident.

12. Princip al Ebony Dunn testified that " all of the

employees have to sign - in whether they ' re hourly, whether they ' re

full - time, non - instructional. " Thus, Castella would have been

required to sign in at this designated area at the beginning of

each day where the pos ter was prominently displayed. The

undersigned finds that based on the more persuasive evidence,

Respondent was aware of the poster ' s content.

13. Respondent's Exhibit C is another poster with the title

Reporting Child Abuse is Everyone ' s Responsibility . This poster

details various signs of child abuse and how someone can report

an instance of child abuse. The undisputed evidence indicated

that this poster was also displayed at the student services

building/main learning center at all times relevant to the

incident.

14. T he more persuasive evidence and reasonable inferences

drawn from the evidence indicate that Respondent was aware of

both of these posters and knew of her duty to report suspected

child abuse.

March 9, 2015 , Incident

15. On March 9, 20 15, Castella was approached by three

girls at lunch, one of whom was Y.H., a sixth - grade female

student. Castella observed that the other two girls were

prodding Y.H. to speak to Castella.

16. During this encounter, Castella was informed by Y.H.

that her stepfather comes into her room and lies on top of her

with his clothes on without touching her in any inappropriate

way, when her mother was not present. 2/

17. Y.H. also informed Castella at lunch that her

stepfather pushed her toward a wall causing her to fall into a

chair and then he pulled her by the hair.

18. After lunch, Castella went to another teacher,

Philogene, to report the incident because " she wasn ' t sure what

to do , " and she wanted to know the other teacher ' s thoughts on

Y.H. ' s statement. 3/

19. Castella contends that she was not aware that what Y.H.

told her amounted to child abuse. However, when asked why she

told Philogene about the incident, Castella responded, " I wanted

to ask Ms. Philogene what she thought because what Y.H. told me

was odd, weird. " The record indicates that after hearing about

the incident, Philogene told Castella to report the incident to

C ounselor Durden. 4/

20. C astella testified that on March 9, 2015 , she went to

C ounselor Durden ' s office to discuss what she had he ard from Y.H.

and the other two female students. However, Castella asserted

that despite her efforts, she was not able to report the incident

to C ounselor Durden because she was not in her office.

Significantly, Castella left the school that day without

reporting the incident to any administrator on campus. 5/

21. Inexplicably, Castella did not immediately report the

female student ' s information on March 9, 2015 , to the Department

of Children and Families or to the Child Abuse Hotline.

22. Respondent c laims that she did not know the protocol

for reporting child abuse. The undersigned rejects this claim as

incredible and spurious. Rather, the credible and more

persuasive evidence shows that it was common knowledge among the

school staff, based on train ing and posted notices, that an

incident of child abuse should be reported immediately.

March 10, 2015 , Incident

23. The next day, Castella went to C ounselor Durden ' s

office immediately upon arriving at the school to report what

Y.H. had told her the day before.

24. According to school policy, Castella was mandated to

report the incident to a school administrator. Counselor Durden

was not an administrator, nor was she Castella ' s supervisor.

25. After disclosing the nature of her visit, Counselor

Durden questioned Castella about the incident and why Castella

did not report the incident when she became aware of it the day

before. Counselor Durden testified that , " [Ms. Castella] said a

young lady, a sixth - grader, had told her during lunch that the

stepfath er comes into the room every night drunk and holds her

down and climbs on her. So I said, ' She told you when? ' And she

said, ' Yesterday during lunch. ' And I said, ' You didn ' t call it

in? ' And she said, ' No I didn ' t. ' And I think she was talking

about like, you know she ' s friendly with the kids, and she didn ' t

want to lose her confidence, they trusted her. "

26. Castella testified that she was reluctant to

immediately report the incident because she did not want to

violate the female students ' trust.

27 . Counselor Durden proceeded to call the Department of

Children and Families while Castella was still in her office.

Both joined in reporting to the D epartment of Children and

Families what had occurred.

28. Later that afternoon, the Department of Child ren and

Families held a meeting at the school with Y.H., the other two

girls who were with Y.H., and Castella to gather details of the

suspected child abuse and to determine how to proceed with the

incident.

Contact With News or Media Outlets

29. Castel la contacted and voluntarily appeared on a number

of local news broadcasts. She detailed the suspected child abuse

incident and proceeded to give the name of the school.

30. Petitioner's Exhibit 8, which is a Notice of

Investigation signed by Castella an d delivered to her, states

that a faculty member may be terminated if they speak to a number

of subjects about a pending investigation. The document

specifies, " You are not to discuss this matter with any

witnesses, parents, staff, students, or the compla ining party to

avoid interference with the investigation. "

31. Castella asserts that she did not violate the notice

because it did not specify she could not speak to news stations .

However, Principal Dunn testified that anyone, including the

listed parti es, had the ability to watch the news broadcast.

32. Therefore, the undersigned finds that her appearance on

the news stations violated the spirit and intent of the notice

because it could have had an indirect, adverse impact on

witnesses and interfered w ith the internal investigation by the

school district.

CONCLUSIONS OF LAW

3 3. DOAH has jurisdiction over the parties and subject

matter of this case pursuant to sections 120.569 and 120.57(1).

3 4. Petitioner is responsible for filing complaints and

pros ecuting allegations of misconduct against instructional

personnel. § 1012.796(6), Fla. Stat.

35 . Respondent is substantially affected by Petitioner ' s

intended decision to discipline her Florida educator ' s

certificate and has standing to maintain this pro ceeding .

36 . Petitioner seeks to take action against Respondent ' s

educator ' s certificate as provided in section 1012.795. A

proceeding to impose discipline against a professional license is

penal in nature, and Petitioner bears the burden to prove the

al legations in the Amended Administrative Complaint by clear and

convincing evidence. Dep ' t of Banking & Fin. v. Osborne Stern &

Co . , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987). See also § 120.57(1)(J) , Fla. Stat.

37 . The Florida Supreme Court has stated that the clear and

convincing standard requires that:

[T]he 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 establis hed.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting S lomowitz

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

38. Discipline may be imposed only on grounds specifically

alleged in the Amended Administrative Complaint. See Cottrill v.

Dep ' t o f Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney

v. Dep ' t of State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987);

Hunter v. Dep ' t Prof ' l Reg. , 458 So. 2d 842, 844 (Fla. 2d DCA

1984).

39. The state laws requiring a teacher and other school

personnel to report suspected child abuse are clear and

unambiguous. They are found in the following sections, with

pertinent provisions highlighted .

40. Section 1012.795 provides:

Education Practices Commission; authority to

discipline . --

(1) The Education Practi ces Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3) for

up to 5 years, thereby denying that person

the right to teach or otherwise be employed

by a district school board or public school

in any capacity requ iring direct contact with

students for that period of time, after which

the holder may return to teaching as provided

in subsection (4); may revoke the educator

certificate of any person, thereby denying

that person the right to teach or otherwise

be emplo yed by a district school board or

public school in any capacity requiring

direct contact with students for up to

10 years, with reinstatement subject to the

provisions of subsection (4); may revoke

permanently the educator certificate of any

person thereby denying that person the right

to teach or otherwise be employed by a

district school board or public school in any

capacity requiring direct contact with

students; may suspend the educator

certificate, upon an order of the court or

notice by the Departmen t of Revenue relating

to the payment of child support; or may

impose any other penalty provided by law, if

the person :

(a) Obtained or attempted to obtain an

educator certificate by fraudulent means.

(b) Knowingly failed to report actual or

suspected c hild abuse as required in

s. 1006.061 or report alleged misconduct by

instructional personnel or school

administrators which affects the health,

safety, or welfare of a student as required

in s. 1012.796.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules. (emphasis added).

41. Section 1006.061 , Florida Statutes, provides:

Child abuse, abandonment, and neglect

policy . -- Each district school board, charter

school , and private school that accepts

scholarship students under s. 1002.39 or

s. 1002.395 shall:

(1) Post in a prominent place in each school

a notice that, pursuant to chapter 39, all

employees and agents of the district school

board, charter school, or pr ivate school have

an affirmative duty to report all actual or

suspected cases of child abuse, abandonment,

or neglect ; have immunity from liability if

they report such cases in good faith; and

have a duty to comply with child protective

investigations and all other provisions of

law relating to child abuse, abandonment, and

neglect. The notice shall also include the

statewide toll - free telephone number of the

central abuse hotline. (emphasis added).

42. Section 39.201 , Florida Statutes , provides :

Mandato ry reports of child abuse,

abandonment, or neglect ; mandatory reports o f

death; central abuse hotline. --

(1)(a) Any person who knows, or has

reasonable cause to suspect, that a child is

abused , abandoned, or neglected by a parent ,

legal custodian, caregi ver, or other person

responsible for the child ' s welfare , as

defined in this chapter, or that a child is

in need of supervision and care and has no

parent, legal custodian, or responsible adult

relative immediately known and available to

provide supervisio n and care shall report

such knowledge or suspicion to the department

in the manner prescribed in subsection (2) .

* * *

(2)(a) Each report of known or suspected

child abuse , abandonment, or neglect by a

parent, legal custodian, caregiver, or oth er

person responsible for the child ' s welfare as

defined in this chapter, except those solely

under s. 827.04(3), and each report that a

child is in need of supervision and care and

has no parent, legal custodian, or

responsible adult relative immediately known

and available to provide supervision and care

shall be made immediately to the department ' s

central abuse hotline . (e mphasis added ) .

Count 1

43 . Count 1 alleges that Respondent is in violation of

section 1012.795(1)(b), in that Respondent knowingl y failed to

report actual or suspected child abuse as required in section

1006.061 or report alleged misconduct by instructional personnel

or school administrators which affects the health, safety, or

welfare of students as required in section 1012.796.

44 . Count 1 was proven by Petitioner based on clear and

convincing evidence .

Count 2

45. Count 2 alleges that Respondent is in violation of

s ection 1012.795(1)(j), in that Respondent has violated the

Principles of Professional Conduct for the Education Pro fession

prescribed by State Board of Education rules.

46. Count 2 was proven by Petitioner based on clear and

convincing evidence .

Count 3

47. Count 3 alleges that Respondent violated Florida

Administrative Code Rule 6A - 10.081(3)(a), in that Respondent

f ailed to make reasonable effort to protect the student from

conditions harmful to learning and/or to the student ' s mental

health and/or physical health and/or safety.

48. Count 3 was proven by Petitioner based on clear and

convincing evidence.

Count 4

49 . Count 4 alleges that Respondent violated r ule 6A -

10.081(3)(e), in that Respondent has intentionally exposed a

student to unnecessary embarrassment or disparagement.

50. Count 4 was not proven by Petitioner by clear and

convincing evidence.

Count 5

51. Count 5 alleges that Respondent violated r ule 6A -

10.081(3)(f), in that Respondent intentionally violated or denied

a student ' s legal rights.

52. Count 5 was not proven by Petitioner by clear and

convincing evidence.

Penalty

53. The Florida Education Pra ctices Commission adopted

disciplinary guidelines for the imposition of penalties

authorized by section 1012.795 in Florida Administrative Code

Rule 6B - 11.007.

5 4 . Rule 6B - 11.007(2)(i)16 . provides that probation up to

revocation is an appropriate range o f penalty for " [f]ailure to

protect or supervise students in violation of paragraph 6B -

1.006(3)(a), F.A.C. "

5 5 . Rule 6B - 11.007(2) provides that in addition to the

other disciplinary guidelines set forth in the rule, each should

be interpreted to include " probation, " " Recovery Network

Program, " " letter of reprimand, " " restrict scope of practice, "

" fine, " and " administrative fees and/or costs " as additional

penalty provisions.

56. R ule 6B - 11.007(3) provides that:

Based upon consideration of aggravating and

mitigating factors present in an individual

case, the Commission may deviate from the

penalties recommended in subsection (2). The

Commission may consider the following as

aggravating or mitigating factors:

(a) The severity of the offense;

(b) The dan ger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the educator has

been previously disciplined by the

Commission;

(f) The length of time the educator has

practiced and the contribution as an

educator;

(g) The actual damage, physical or

otherwise, caused by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

educator ' s livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the educator

to correct or stop the violation;

(n) Related vio lations against the educator

in another state including findings of guilt

or innocence, penalties imposed and penalties

served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related offenses

under subsecti on (2) above;

(q) Pecuniary benefit or self - gain inuring

to the educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Present status of physical and/or mental

condition contributing to the violation

including recovery from add iction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

57 . In this case, the physical and emotional safety and

well - being of a young female student was jeopardized by

Respondent ' s failure to immediately notify the app ropriate

authorities of what she learned on March 9 , 2015 . 6/

58. Respondent ' s excuse that she did not want to violate

the trust of the female student(s) is categorically rejected.

This unconvincing excuse and attempt to " explain away " her

conduct complet ely fails to recognize the central and overriding

obligation she has to protect students from child abuse. This

was a serious breach of her duties and evinces poor and

questionable judgment on Respondent ' s part.

59 . No compelling or persuasive aggravatin g or mitigating

circumstances are present in this case to the extent necessary to

warrant deviation from the wide range of penalties already

permitted within the guidelines.

60 . To conclude, it was a serious breach of her legal ,

moral , and ethical duties to fail to immediately report the

matter. Likewise, Respondent ' s delay exposed the female student

to additional physical, health , and safety concerns.

61. Similarly, Respondent ' s revelation of the matter to the

media outlet violated both the spirit and i ntent of the written

admonition she was given. Respondent clearly knew better and

jeopardized the integrity and progress of the investigation by

speaking with the media. At a minimum, students or other

witnesses , who viewed the news programs , could have been tainted

or changed their testimony or their view of events because of

what Respondent told the news.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a final order finding Diana Castella in violation of

Counts 1, 2 , and 3 of the Amended Administrative Complaint and

placing her license on a one - year probationary status, during

which time she be ordered to attend and successfully complete, at

her expense, traini ng related to her reporting obligations under

section 1012.795(1)(b) , Florida Statutes .

DONE AND ENTERED this 17th day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Di vision 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 17th day of Ma rch , 2017 .

ENDNOTE S

1/ All references to Florida Statutes or administrative rules are

to the versions in effect on the date of the alleged violations,

except as otherwise indicated.

2/ Significantly, Respondent elaborated and also told C ounselor

Durd en the following day that Y.H. had told her that these

encounters occurred at night when the stepfather was drunk and

that he holds her down. See para. 25 .

3/ This disclosure to Philog e ne did not fulfill her requirements

under the law .

4/ The undersig ned concludes that a reasonably educated teacher,

hearing Y.H.'s reports under those circumstances, would know or

should know that such conduct constitutes suspected child abuse.

5/ There was no evidence presented to corroborate Castella's trip

to Counse lor Durden's office on March 9 , 2015 . Despite the

serious nature of the incident, Castella did not attempt to leave

any message to confirm or document her visit, such as a note or

an email.

6/ Fortunately, there was no proof that Y.H. suffered actual

ph ysical injury by Respondent's delayed reporting.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Ralph Patino, Esquire

Suite 740

550 Biltmore Way

Coral Gables, Florida 33134

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street , Suite E

Fort Lauderdale, Florida 33316

(eServed)

Douglas E lias Ede, Esquire

Sch iller, Kessler and Gomez, P.A.

Second Floor

7501 West Oakland Park Boulevard

Miami, Florida 33157

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(e Served)

Marian Lambeth, Bureau Chief

Bureau of Professional

Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties h ave 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.