17-006741 Department Of Children And Families vs. Edu Express, Llc, D/B/A The Little Engine Academy Status: Closed Recommended Order on Wednesday, April 11, 2018.

Summary: With no detailed evidence as to whether the child's health was significantly impaired, the Department of Children and Families failed to prove that Respondent violated rule 65C-22.001(11)(b).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 17 - 6741

EDU EXPRESS, LLC, d/b/a THE

LITTLE ENGINE ACADEMY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on February 16 , 2018, via video teleconference at sites in

Tallahassee and Daytona Beach, Florida, before Garnett W.

Chisenhall, a duly - designated Administrative Law Judge of the

Divisi on of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Jane Almy - Loewinger, Esquire

Department of Children and Families

Suite 447

210 North Palmetto Avenue

Daytona Beach, Florida 32114

For Respondent: Joy Vaeth, p ro se

EDU Express, LLC, d/b/a The Little

Engine Academy

499 South Nova Road

Ormond Beach, Florida 32174

STATEMENT OF THE ISSUE

The issue is whether EDU Express, LLC, d/b/a The Little

Engine Academy (ÐEDU Express Ñ) , violated Florida Admini strative

Code Rule 65C - 22.001(11)(b) 1/ by failing to report a suspected

incident of child abuse .

PRELIMINARY STATEMENT

On approximately Novem ber 14, 2017, the Department

of Children and Families (Ðthe DepartmentÑ) issued an

Administrative Complaint alle ging that a complaint investigat ion

conducted on August 16, 2017 , determined the following:

As a mandated reporter, the owner, operator,

employee, or substitute failed to report

suspected child abuse or neglect as required

in section 39.301 Florida Statute s. The

owner and director of this facility failed

to report that a child was held by the wrist

and removed from an incident causing the

childÓs elbow to become dislocated. The

childÓs parent stated that she asked the

owner of the facility to make an abus e

report, the parent realized six (6) months

later that the report was not made and

called in a report on August 15, 2017.

According to the Administrative Complaint, the

aforementioned allegations amounted to a violation of r ule 65C -

22.001(11)(b) and a Class I violation of child care licensing

standards .

Class I violations are the most serious and pertain to

situations in which a child has b een harmed or there is

imminent danger of future harm. T he violation alleged in

the Administrative Complaint wo uld be EDU ExpressÓs fifth

Class I violation within a two - year period. As a result, the

Department notified EDU Express that it was seeking to impose a

$ 5 00.00 fine and revoke EDU ExpressÓs child care license. 2/

On December 8, 2017, EDU Express re sponded by requesting a

formal administrative h earing. Within the hearing request, EDU

Express noted that it disputed the allegations that: (1) there

was suspected child abuse or neglect; and that (2) the parent of

the alleged victim requested that an ab use report be filed.

On December 18, 2017, the Department referred this matter

to DOAH for a formal administrative hearing.

Via a Notice issued on December 28, 2017, the undersigned

scheduled the final hearing to occur by video telec onference on

Febr uary 16, 2018.

Prior to the final hearing, the Department filed a Notice

that it would be treating its Administrative Complaint as an

exhibit. The undersigned accepts the Administrative Complaint

as the Department Ós Exhibit 1.

The final hearing was c ommenced as scheduled.

The Department presented testimony from Betsy Lewis , a

Family Services Counselor Supervisor , and Patricia Medi co , a

Family Services Counselor . The Department did not offer any

additional exhibits into evidence during the final he aring.

EDU Express off ered the testimony of Joy Vaeth, and

EDU ExpressÓs Exhibits 1 through 6 were admitted into evidence

without objection.

During the final hearing, the undersigned received

testimony indicating that EDU Express had closed and that

its license had been relinquished or Ðclosed out . Ñ The

testimony also revealed that another operator had moved into

the physical space previously occupied by EDU Express. Because

the Department was still seeking to impose a $500 fine on EDU

Express, the undersigned concluded that this proceeding had not

been rendered moot.

After the conclusion of the final hearing, the Department

filed a composite exhibit describing previous disciplinary

actions taken a gainst EDU Express. The undersigned accepts that

composite exhibit into evidence and designates it as the

DepartmentÓs Exhibit 2 .

The Transcript from the final hearing was filed with DOAH

on March 7, 2018, and the Department filed its Proposed

Recommended Order on March 12, 2018. The undersigned cons idered

the DepartmentÓs Proposed Recommended Order during the

preparation of this Recommended Order.

EDU Express did not fil e a p roposed r ecommended o rder.

FINDING S OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and th e entire record in this proceeding, the

following Findings of Fact are made:

1. At all times relevant t o the instant case, EDU

Express was a Florida - licensed childcare facility owned by Joy

Vaeth with 100 to 120 children under its care.

2. The Departme nt is the state agency responsible for

licensing and regulating childcare facilities in Florida.

See § § 402.305 - .311, Fla. Stat. (2017). 3 /

3. In order to fulfill its regulatory duty, the Department

inspects every childcare facility three times a yea r. The

Department will cond uct an additional inspection if it receives

a complaint pertaining to a particular childcare facility.

4. The Department administers r ule 65C - 22.001, and

subsection (11) of the r ule su bjects childcare facilities to

discipline f or failing Ðto pe rform the duties of a mandatory

reporter pursuant to Section 39.201.Ñ Such failure Ðconstitutes

a violation of the standards in Section 402.301 - .319, F.S.Ñ

5. Section 39.201(1)(a), Florida Statutes, mandates that

Ð[a]ny person who know s, or has reasonable cause to suspect,

that a child is abused . . . shall report such knowledge or

suspicion to the [Department] in the manner prescribed in

subsection (2).Ñ 4 /

6. On February 24, 2017, an employee of EDU Express

inadvertently injured a c hildÓs elbow while ending a scuffle

between that child and another child.

7 . Because EDU Express maintained cameras in its facility,

the incident was captured on video.

8 . After watching a video of the incident, Ms. Vaeth

conclude d that she was not r equired to report the incident to

the pertinent authorities :

And I Î it was an accident . . . The teacher

had been changing a child and off in the

distance was another child hitting a child

with a drumstick. And, so, the teacher

picked up the child she wa s changing to stop

that, because theyÓre one and Î or one and a

half. And went over and holding one Î the

child she had been changing, just lifted

that child up and away from the child she

was hitting so that there was no injury.

And in that process the childÓs arm Î the

elbow got this injury called NursemaidÓs

elbow . [ 5 / ]

So I just Î in my mind weÓre all Î you know,

talking about the Î you know, what happened,

and I just didnÓt think of it as abuse that

I needed to report to the hotline. And,

even as part of my Exhibit One, this is a

flyer at one point, you know, that DCF put

out about signs to look for. And, again,

when I read t his I still donÓt read this

and go, oh, yeah, I should have reported

that to the h otline because it was abuse.

I just Î I d idnÓt believe it was abuse.

My teacher did not purposely set out to

injure that child. And in the process of

trying to prohibit another child from being

injured she pulled the child up by one arm

and that arm was injured. So Î and, so,

anyway, thatÓs ju st Î I just didnÓt connect

the dots.

* * *

And Î but I called the parents and I talked

to the dad. ItÓs not like I tried to hide

it from him. I called him and I told him

what had happened. I talked to the mom the

next day. Of course, they were upse t.

Understandably they were upset. But, again,

I wasnÓt Î I didnÓt realize that the Î that

I had to call the abuse and neglect hotline

on situations like this. I know now.

And then, as far as the parent asking me

to report it, I Î - I do not believe she

did. And if she did, I didnÓt understand it

that way. And I Î as part of my Exhibit Two

I Î - we talked on the phone, but she also

texted me. And those are the only texts I

have. But never once in the text messaging

Î - I was going back and forth a lit tle bit

with her to c heck on G.H. to see how she

was and she never suggested that Î that I

understood, to call the hotline as suspected

abuse.

9. While Ms. Vaeth initially concluded that she was not

required to report the incident to the Department, th e childÓs

mother concluded otherwise and wa s under the impression that

Ms. Vaeth was going to report the incident.

10. Ms. Vaeth was not under the impression that the mother

asked her to report the incident.

11. The child remained under EDU Express Ós care for

another six months.

12. Upon learning that Ms. Vaeth never reported the

incident, the childÓs mother filed a complaint with the

Department on August 15 , 2017. The Department then conducted an

inspection of EDU Express and evaluated whether the incident

amounted to an instance of abuse.

13. Patricia Medico was the family services counselor who

had been responsible for conducting the DepartmentÓs inspections

of EDU Express since it opened in 2013.

14. Ms. Medico conducted the inspecti on resulting from the

motherÓs complaint.

15. During the course of that inspection, Ms. Medico

vi ewed a video of the incident and described what she saw as

follows:

She was by herself in the classroom at the

time. She had a baby in one arm. Whether

the baby was upset or she had just changed

it -- she had a baby in her arm and, so, she

saw a situation over there. Two children

fighting over Î I think it was a toy drum.

And reached over to move the child so, you

know, it may have appeared that she wa s

pulling the child. But as we looked at the

video over and over again, thatÓs not what

it was. She was just Î she was pulling the

child to safety is what she was doing and,

you know, wasnÓt aware that anything had

happened to the child. Ms. Vaeth did r emove

that person from her Î her position . [ 6 / ]

16. While there is no evidence that the EDU employee

intended to cause injury by grabbing the childÓs arm and

removing the child from the scuffle , that employee did intend to

remove the child from the scuff le by grabbing the childÓs arm.

17. The child suffered some degree of har m due to the

EDU employee grabbing his or her arm.

18. T he re is no sufficiently detailed evidence as to

whether the childÓs physical, mental, or emotional health was

significantl y impaired by the harm suffered by the child. For

example, there was no evidence regarding the severity of the

childÓs injury or whether she experienced any pain. Also, there

is no detailed evidence about the amount of treatment that was

necessary to tre at the childÓs condition. 7 /

19. The incident on February 24, 2017, did not result from

any ambivalence on Ms. VaethÓs part or any disregard for the

welfare of the children under her care.

20. With the exception of a n earlier incident which led to

t he Department charging EDU Express with multiple violations,

Ms. Medico was never under the impression that the children at

EDU Express were in an unsafe environment.

CONCLUSIONS OF LAW

21. D O AH has personal and subject matter jurisdiction in

this proce eding pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2017) .

22. A proceeding, such as this one, to impose discipline

upon a license is penal in nature. State ex rel. Vining v.

Fla. Real Estate Comm'n , 281 So. 2d 487, 491 (Fla. 1973).

Acc ordingly, DCF must prove the charges against EDU Express by

clear and convincing evidence. D ep't of Banking & Fin., Div.

of Sec. & Inv . Prot. v. Osborne Stern & Co. , 670 So. 2d 932,

933 - 34 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292,

294 - 95 (F la. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of

Med. , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

23. Regarding the standard of proof, the court in

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

stated that :

clear and co nvincing eviden ce requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be dis tinctly remembered;

the testimony must be precise and explicit

and the witnesses must be lacking in

confusion as to the facts in issue. The

evi dence must be of such weight that it

produces in the mind of the trier of fact

a firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Id.

24. The Florida Supreme Court later adopted the

Slomowitz co urt's description of clear and convincing evidence.

See In re Davey , 645 So. 2d 398, 404 (Fla. 1994). The First

District Court of Appeal has also followed the Slomowitz test,

adding the interpretive comment that "[a]lthough this standard

of proof may be met where the evidence is in conflict, . . . it

seems to preclude evidence that is ambiguous." Westinghouse

Elec. Corp. v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st

DCA 1991).

25. Section 402.310, Flor ida Statutes, authorizes the

Department to im pose discipline against licensed childcare

facilities. This statute provides, in pertinent part, that the

Department "may administer . . . disciplinary s anctions for a

violation of any provision of ss. 402.301 - 402.319, or t he rules

adopted thereunder." § 402.310(1)(a), Fla. Stat.

26. The DepartmentÓs Admini strative Complaint alleged

that EDU Express violated r ule 65C - 22.001(11)(b). The

aforementioned r ule pertains to Ð child safetyÑ and provides

that Ð[f]ailure to perform the duties of a mandatory report er

pursuant to Section 39.201, F.S., constitutes a violation of the

standards in Sections 402.301 - .319, F.S.Ñ

27. Section 39.201(1)(a) mandates that:

Any person who knows, or has reasonable

cause to suspect , [ 8 / ] that a child is abused,

abandoned, or neg lected by a parent, legal

custodian, caregiver, or other person

responsible for the childÓs 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 immediatel y known and

available to provide supervision and care

shall report such knowledge or suspicion to

the department in the manner prescribed in

subsection (2).

28. Sec tion 39.01( 2 ), Flor ida Statutes , defines ÐabuseÑ

as :

any wil lful act or threatened act

t hat results in any physical, mental,

or sexual abuse, injury, or harm that

causes or is likely to cause the childÓs

physical, mental, or emotional health to be

significantly impaired. Abuse of a child

includes acts or omissions. Corporal

discipline of a child by a parent or legal

custodian for disciplinary purposes does not

in itself constitute abuse when it does not

result in harm to the child.

29. Section 39.01(30)(a) provides that ÐharmÑ to a childÓs

health or welfare can occur when someone:

Infli cts or allows to be inflicted upon the

child physical, mental, or emotional injury.

In determining whether harm has occurred,

the followin g factors must be considered

in evaluating any physical, mental, or

emotional injury to a child: the age of the

child ; any prior history of injuries to the

child; the location of the injury on the

body of the child; the multiplicity of the

injury; and the type of trauma inflicted.

Such injury includes, but is not limited to:

Willful acts that produce the following

spec ific injuries:

a. Sprains, dislocations, or cartilage

damage .

b. Bone or skull fractures.

c. Brain or spinal cord damage.

d. Intracranial hemorrhage or injury to

other internal organs.

e. Asphyxiation, suffocation, or drowning.

f. Injury resulting from the use of a de adly

weapon.

g. Burns or scalding.

h. Cuts, lacerations, punctures, or bites.

i. Permanent or temporary disfigurement.

j. Permanent or temporary loss or impairment

of a body part or function.

As used in this subparagraph, the term

ÐwillfulÑ ref ers to the intent t o perform

an action, not to the intent to achieve a

result or to cause an injury.

(emphasis added).

30. In order for the Department to prove that EDU Express

violated its duty to report under r ule 65C - 22.001(11)(b), the

Department had to prove that EDU Express knew, or had reasonable

cause to suspect, that the incident on February 24, 2017, was

Ð abuse Ñ within the meaning of section 39.01(2).

31. Therefore, the Department had to prove the following

elements by clear and convincing evidence: (a) that th e EDU

employee committed a willful act; (b) that the willful act

resulted in physical or mental harm ; and that (c) the physical

or mental harm significantly impaired the childÓs physical,

mental, or emotional health.

32. Moreover, the pertinent statutory provisions must be

strictly construed in EDU ExpressÓs favor. Munch v. DepÓt of

ProfÓl Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla.

1 st DCA 1992).

33. Even though there is no evidence indicating that

the EDU employee at issue intended to ca use injury by grabbing

the childÓs arm and removing the child from the scuffle,

t he evidence clearly and convincingly demonstrates that the

EDU employee intended to remove the child from the scuffle by

pulling that childÓs arm. Thus, the EDU employee comm itted a

Ðwillful actÑ within the meaning of s ection 39.01(30)(a).

34. The evidence also clearly and convincingly

demonstrates that the child suffered some degree of ÐharmÑ

within the meaning of s ection 39.01(30)(a).

35. However, there i s no d etaile d evidence as to

whether the childÓs physical, mental, or emotional health was

significantly impaired by the harm suffered by the child. For

example, there was no evidence regarding the severity of the

childÓs injury or whether she experienced any pain. Also, there

is no detailed evidence about the amount of treatment that was

necessary to treat the childÓs condition. Compare DepÓt of

Child . and Fam . Servs . v. Little PeopleÓs Place and D.A. , Case

No. 09 - 6581 (Fla. DOAH April 15, 2010), adopted in part or

modified (Fla. DCF Sept. 2, 2010) (considering the meaning of

ÐabuseÑ in r ule 65C - 22.001(11) and finding the following: ÐThe

willful act resulted in physical harm to J.B. J.B. suffered

bruises on the back and front of his neck. The bruises lasted

approx imately six days. They initially appeared as red marks

and then changed in color to purple, yellow, and brown. Expert

medical testimony at the hearing determined that the bruises are

consistent with abuse caused by excessive force.Ñ).

36. Without suc h evidence, the Department cannot

demonstrate by clear and convincing evidence that EDU Express

violated r ule 65C - 22.001(11)(b).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Child ren and

Families dismiss the Administrative Complaint at issue in this

proceeding.

DONE AND ENTERED this 11 th day of April , 2018 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

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 11 th day of April, 20 18 .

ENDNOTE S

1/ Rule 65C - 22.001(11)(b) has been amended since the event at

issue in this proceeding occurred. A new version of Rule 65C -

22.001 went into effect on October 25, 2017 . However, the

version of the rule in effect when the event at issue oc curred

is the rule that applies . See generally Anglicklis v. DepÓt of

ProfÓl Reg. , 593 So. 2d 298, 300 (Fla. 2d DCA 1992)( holding that

the appellants could not be found to have violated a rule that

was not in effect at the time of the audit).

2 / The D epartment classifies violations by severity, with

Class I violations being the most severe. Rule 65C -

22.010(2)(d) 1.b. mandates that Ð[f]or the third and subsequent

violation of a Class I standard, the Department shall suspend,

deny or revoke the license . The Department . . . may also

impose a fine not less than $100.00 nor more than $500.00 per

day for each violation in addition to any other disciplinary

sanction.Ñ

While EDU Express accumulat ed enough serious violations

to trigger a mandatory suspensi on or revocation of its license,

th e testimony of Patricia Medico , the Department Ós fa mily

services counselor who had been responsible for inspectin g EDU

Express since it opened in 2013 , indica ted that the violations

did not result from a disregard for the welfare of the children

at EDU Express . For example, when asked if she had any concerns

about the owner of EDU Express, Joy Vaeth , runn ing a daycare

center again, Ms. Medico testified that, ÐShe cares so much

about what she does. SheÓs a hardworking lad y. She works a lot

of hours. I Î my concern is common sense issues that are not

being addressed.Ñ Ms. Medico also testified that she never felt

that the children in Ms. VaethÓs care were in an unsafe

environment.

3/ Unless stated otherwise all statu tory citations will be to

the 2016 version of the Florida Statutes.

4/ Section 39.201(2)(a) provides that :

Each report of known or suspected child

abuse, abandonment, or neglect by a parent,

legal custodian, caregiver, or other person

responsible for th e childÓs welfare as

defined in this chapter, except those solely

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

child is in need of supervis ion and care

and has no parent, legal custodian, or

responsible a dult relative immediately

known and available to provi de supervision

and care shall be made immediately to the

departmentÓs central abuse hotline. Such

reports may be made on the single statewide

toll - free telephone number or via fax, web -

based chat, or web - based report. Personnel

at the departmentÓs centra l abuse hotline

shall determine if the report received meets

the statutory definition of child abuse,

abandonment, or neglect. Any report meeting

one of these definitions shall be accepted

for the protective investigation pursuant to

part III of this chap ter. Any call received

from a parent or legal custodian seeking

assistance for himself or herself which does

not meet the criteria for being a report of

child abuse, abandonment, or neglect may

be accepted by the hotline for response to

ameliorate a pote n tial future risk of harm

to a child. If it is determined by a

child welfare professional that a need for

community services exists, the department

shall refer the parent or legal custodian

for appropriate voluntary community

services.

5 / With the Depar tmentÓs consent, Ms. Vaeth introduced as EDU

ExpressÓs Exhibit 4 , a printout from KidsHealth.org describing

NursemaidÓs Elbow. According to this document, NursemaidÓs

Elbow is a common injury among toddlers and preschoolers. It

occurs Ðwhen a ligament sl ips out of place and gets caught

between two bones of the elbow joint.Ñ Sometimes, the injury

heals on its own. ÐIn most cases, a health care professional

gets the ligament back in place by doing a quick, gentle move of

the arm.Ñ A child with Nursem aidÓ s E lbow experiences some pain

when the injury occurs, Ðbut it doesnÓt cause long - term damage.Ñ

The document from KidsHealth.org also s tates that

NursemaidÓs Elbow occurs because the ligaments of children 1 to

4 years old Ðare a bit loose.Ñ T herefore, Ð it can be easy for

a ligament in the elbow to slip into the joint and get stuck.Ñ

NursemaidÓs Elbow can result from Ðjust a small amount of

force.Ñ As a result, the document counsel s caregivers from:

(1) pulling a child up by the hands; (2) swinging a t oddler by

holding the hands or wrists; or (3) jerking an arm when pulling

a toddler along.

Fortunately, elbow ligaments tighten as children grow

older, and most children will not suffer from NursemaidÓs Elbow

after they turn five years old.

With rega rd to the signs and symptoms of NursemaidÓs Elbow,

a child experiencing this condition Ðwill not want to use the

injur ed arm because moving it is painful.Ñ The child Ðwill keep

the arm in a straight position or with a slight bend in the

elbow. Ñ The injur y will not be obvious because NursemaidÓs

Elbow ÐdoesnÓt cause deformity or swelling.Ñ

If there is no swelling or other injury, a physician will

treat NursemaidÓs Elbow by performing Ða gentle maneuver called

a reduction.Ñ This procedure only takes a f ew seconds, and the

child can Ð sit on the parentÓs la p while the doctor gently

takes the arm from a straight position and bends it upward or

straightens the arm while turning the palm to the floor.Ñ A

child Ðmight have a brief moment of pain during the re duction,

but [will] quickly feel much better.Ñ Most children Ðhave full

use of the arm within 5 to 10 minutes, but some cases may

require more than one reduction t o successfully fix the injury. Ñ

After a reduction, the child could be concerned about pain and

may not want to use the arm. If the child is experiencing

discomfort, the physician may put the arm in a sling and direct

a parent to administer acetaminophen or ibup rofen for pain

relief. In some cases, a physician may place a splint or

partial cast Ðto protect the arm until a specialist can check it

after a few days of rest.Ñ

As for prevention, the document from KidsHealth.org warns

that some children are more prone to sustaining NursemaidÓs

Elbow than others and might experience it again even when

parents try hard to prevent it.

While the document from KidsHealth.org was hearsay, it

supplemented or corroborated Ms. VaethÓs direct testim ony

about NursemaidÓs Elbow. As a result, the undersigned can base

findings of fact on that document. See § 1 20.57(1), Florida

Statutes (providing that Ð[h]earsay evidence may be used for the

purpose of supplementing or explaining other evidence, but it

shall not be sufficient in itself to support a finding unless it

would be admissible over objection in civil ac tions.Ñ ) .

6 / The DepartmentÓs investigation included an assessment by a

child protective investigator of whether this incident amounted

to child abuse. After examining the videotape of the incident,

the Department concluded that there was no abuse. N evertheless,

the Department initiated the instant investigation based on its

determination that EDU Express should have reported the

incident.

7 / EDU Express introduced an exhibit consisting of text messages

between Ms. Vaeth and the childÓ s parents o n February 25 and 26,

2017 . There are statements therein indicating that the child

was not fully utilizing her arm after the incident and that the

parents were attempting to consult with an orthopedic physician

who would accept their insurance. EDU Expre ss also introduced

an ÐAccident/IncidentÑ sign ed on February 25, 2017, by Ms. Vaeth

and one of the childÓs parents. The report states that the

childÓs arm Ðmay have been dislocated.Ñ The report also notes

that the child Ðwas favoringÑ her arm when her fa ther picked her

up on the day of the incident. Finally, the report notes that

the parents took the child to either an emergency room or urgent

care that night. Another EDU Express exhibit is an e - mail

between Ms. Vaeth and the childÓs grandmother indicat ing that

the parents were taking the child to see her primary care

physician on February 27, 2017 Ðin order to get a referral.Ñ

8/ Section 39.201(1)(a)Ós reference to having Ðreasonable cause

to suspectÑ is most reasonably interpreted to refer to insta nces

in which a person did not witness an instance of child abuse but

has good reason to believe that abuse occurred. See Urquhart v.

Helmich , 947 So. 2d 539 (Fla. 1 st DCA 2006).

COPIES FURNISHED:

Jane Almy - Loewinger, Esquire

Department of Children a nd Families

Suite 447

210 North Palmetto Avenue

Daytona Beach, Florida 32114

(eServed)

Joy Vaeth

EDU Express, LLC, d/b/a The Little

Engine Academy

499 South Nova Road

Ormond Beach, Florida 32174

Lacey Kantor, Esquire

Department of Children and Famili es

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

John Jackson, Acting General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServe d)

Mike Carroll, 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

1 5 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.