16-003965 Brighter Beginnings Learning Center vs. Department Of Children And Families Status: Closed Recommended Order on Monday, October 17, 2016.

Summary: Petitioner failed to demonstrate entitlement to license to operate child care facility; DCF produced evidence to show applicant was unfit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIGHTER BEGINNINGS LEARNING

CENTER,

Petitioner,

vs. Case No. 1 6 - 3965

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 19, 2016, D . R. Alexander, the assigned

Administrative Law Judge of the Division of Administrative

Hearings (DOAH) , conducted a hearing in this case by video

teleconferencing at sites in Lakeland and Tallahassee, Florida.

APPEARANCES

For Petitioner : Trina Gaines , pro se

Post Office Box 4024

Lake Wales, Florida 33 8 59 - 4024

For Respondent : Cheryl D. Westmoreland , Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Fl orida 33830 - 7646

STATEMENT OF THE ISSUE

The issue is whether Petitioner 's application for a license

to operate a child care facility should be approved.

PRELIMINA RY STATEMENT

By letter dated June 30 , 201 6 , the Department of Children

and Families (Department) informed Trina Gaines that her

application to operate a child care facility under the name of

Brighter Beginnings Learning Center had been denied . The denial

was based upon a search of the Central Abuse Hotline , which

revealed "a history of a verified and not substantiated reports,

naming you as the caretaker responsible and alleged

perpetrator." Petitioner timely requested a hearing to contest

th e intended ag ency action, and the matter was referred to DOAH

to conduct a formal hearing.

At the hearing, Trina Gaines testified on h er own behalf

and presented the testimony of two witness es . Petitioner's

Exhibits 1 through 5 were accepted in evidence. The Departme nt

presented the testimony of six witness es . Department Exhibits A

through C were accepted in evidence.

A t ranscript of the hearing w as not prepared. Proposed

f indings of f act and c onclusions of l aw were filed by the

parties , and they have been conside red in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency responsible for

licensing child care facilities .

2. On June 17, 2016, Ms. Gaines filed an application for a

license to operate a child care facili ty in Babson Park , Polk

County ( County). She previously worked as a caregiver for two

child care facilities in the County and desires to operate a new

facility known as B righter Beginnings Lear ning Center.

3. To qualify for licensure, an applicant must m eet the

licensing standards in section 402.305 (1) , Florida Statutes.

Also, section 402.305(2) requires that child care personnel meet

minimum requirements as to good moral character based upon a

level 2 screening as provided for in chapter 435. That

scre ening includes a check to determine if the applicant has a

report o n the Central Abuse Hotline.

4. The background screening revealed that Ms. Gaines has

three reports on the Central Abuse Hotline . The incidents

occurred in 2010, 2014, and 2015. Based on this information,

and the underlying facts surrounding those reports, the

Department informed Petitioner by letter dated June 30, 2016,

that her application was denied. Petitioner timely requested a

hearing.

5. On July 12, 2010, the Department received a report that

Ms. Gaines (then known as Ms. Hamilton) had grabbed and pinched

several children at Hope Child Development Center in Frostproof ,

where she was working as a caregiver . The incident was

investigated by Deanna McCain, then a child protective

in vestigator (CPI) , who testified at hearing . However, t he

report was not verified because there were no visible injuries

on the children . The facility terminat ed Petitioner as an

employee after the incident .

6 . Ms. Gaines began working as a caregiver at Our

Children's Academy in Lake Wales around October 2013 . O n

October 12, 2014, t he Department received a report that a 1 3 -

year - old child under Ms. Gaines' supervision was left unattended

in a sandbox in the playground while Ms. Gaines was on a

personal c ell phone call in a classroom. The child suffers from

autism and epilepsy and is prone to having seizures. The child

suffered a seizure during Petitioner's absence.

7 . Brandy Queen, a CPI who testified at hearing, was

assigned the task of investigating the incident. Her

investigation revealed the child suffered a severe seizure that

lasted four minutes and caused her to vomit and defecate on

herself. Based on interviews with Petitioner , a teacher who

witnessed the incident, and the school principal , M s. Queen

classified the incident as verified.

8. The child was found face down in the sandbox by a

teacher , Mr. Swindell, who immediately contacted the school

nurse to check the child. Mr. Swindell , who testified at

hearing, established that the child w as alone outside for around

ten to 15 minutes and that Petitioner did not go back outside to

check on the child until after she had awoken from the seizure.

Throughout the episode, Ms. Gaines was making a personal call on

her cell phone.

9. The facilit y has a policy of no cell phone usage during

student contact time. Prior to the incident, the principal had

spoken to Petitioner around nine or ten times about

inappropriate cell phone usage. After the incident, a Letter of

Concern regarding cell phone u sage was placed in Petitioner's

file .

10 . The mother of the student testified at hearing and

stated she had no concerns about the incident and described it

as "overblown." She said her daughter suffers seizures two or

three times a week without warnin g, but they are not life -

threatening. She does not blame Petitioner for the incident.

The mother was under the impression , however, that her child was

left alone for only a very short period of time a nd Petitioner

immediately went back to the playground to retrieve her. The

mother admit t ed she would be concerned had she known t hat her

daughter had been allowed to remain alone for ten to 15 minutes

and that asphyxiation could be a potential result if the child

was face down in the sand.

11. On February 25, 2015, t he De partment received another

report of possible abuse by Petitioner , who was still employed

as a caregiver at Our Children's Academy. The report indicated

that Petitioner had inappropriately dragged a non - verbal child

with Down Syndrome from the classroom to the playground.

12. Two school therapists were present during the incident

and testified at hearing . They confirmed that Petitioner was

working with the child in an effort to get him from the

classroom to the playground swings. The ch ild was frightened by

the swings and resisted her efforts. Petitioner fir st grabbed

the child by one arm, and when he dropped to the floor, she

grabbed both arms and dragged the child on his stomach out of

the classroom and into the hall way . She then dra gged him down a

set of wooden stairs and to the playground where she forced him

to sit in the swings against his will . One of the therapists

observed that the child was very upset and urged Petitioner to

let him calm down, but Petitioner continued draggin g the child

to the playground. Th e frightened child urinated on himself.

13. The incident was investigated by CPI Queen, who

interviewed the Petitioner, principal, and two therapists. She

observed minor bruising on the child's arms but could not say

def initively that the bruising was caused during the incident.

She also could not establish that the child would suffer long -

term emotional trauma due to the incident. Because of this, she

classified the report as unsubstantiated . This meant that

something happened to the child, but she could not verify that

the bruising was caused by Petitioner's actions. The facility

terminated Petitioner as an employee after the incident.

1 4 . Petitioner downplayed her conduct and generally

contended that she never ha rmed or failed to supervise the

children assigned to her care. Petitioner has five children of

her own , she has a passion for children, and she wants to put

that passion to good use by op erating a child care center.

15. Th e Department based its decisio n to deny the

application on the facts that underlie the reports, and not the

reports themselves. This includes consideration of who was

interviewed by the CPI, what the statements were, whether there

were any inconsistencies, how the cases were closed, t he

applicant's employment history, and whether there appears to be

a pattern of concerning behavior. Based on this information, a

Department licensing official observed a pattern of concerning

behavior on the part of Petitioner a s well as inconsistencies

between Petitioner's statements and th ose of persons who

witnessed the incidents. The Department considers Petitioner to

be a potential risk to children unless she is supervised.

CONCLUSIONS OF LAW

1 6. The applicant has the ultimate burden of persuasion to

establish entitlement to the license by a preponderance of the

evidence . Dep't of Bank ing & Fin. v. Osborne Stern & Co. , 670

So. 2d 932 , 934 (Fla. 1996). If the Department proposes to deny

the license because the applicant is unfit, it has the burden to

provide a legitimate reason for denying the license and to

produce competent substantial evidence to support that reason.

Id.

1 7 . Section 402.312(1) prohibits operation of a child care

facility without a license. The Department shall issue a

licens e only "upon being satisfied that all standards required

by ss.402.301 - 402.319 have been met." § 402.308(3)(d), Fla.

Stat.

1 8 . The Department asserts that , based upon the screening,

Petitioner is unfit for licensure. See § 402.305(2)(a), Fla.

Stat. The proposed denial is based on facts arising out of

three reports on the Central Abuse Hotline , two un substantiated

and one verified .

19. When the child care licensing official reviews the

abuse reports pertaining to an applicant, the ultimate

determinati on by the CPI that abuse did or did not occur is

important, but it is not dispositive as to whether the

Department will grant or deny the license application. See

M.B. v. Dep't of Child . & Fam s. , Case No. 09 - 3515 (Fla. DOAH

Feb. 9, 2010; DCF June 9, 2010 ). In other words, the abuse

reports are a source of information for the child care licensing

official, but the existence of a report, whether verified or

not, does not control the licensing decision.

20. If the Department produces competent substantia l

evidence to support its contention that Petitioner abused or

neglected children, this is indicative of a failure of judgment

or supervision by Petitioner and is a legitimate reason for

denying her application.

21. Based upon the entire record, it is c on c luded that

Petitioner has failed to establish by a preponderance of the

evidence that she is entitled to a child care facility license.

Conversely, the Department has produced a legitimate reason to

deny the application. Because the evidence shows tha t

Petitioner is unfit, the application should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Children and Famil i es

e nter a final order denying Petitioner's application for a

license to operate a child care facility .

DONE AND ENTERED this 17th day of October, 201 6 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Par kway

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 October , 201 6 .

COPIES FURNISHED:

Paul Sexton , Agency Clerk

Department o f Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Trina Gaines

Post Office Box 4024

Lake Wales, Florida 33859 - 4024

Cheryl D. Westmoreland, Esquire

Department of Children and Families

1055 U.S . Highway 17 North

Bartow, Florida 33830 - 7646

(eServed)

Rebecca F. Kapusta, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carrol l, Secretary

Department of Children and Families

Building 1, Room 202

1317 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 of the date of this Recommended O rder. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.