18-000042 Department Of Children And Families vs. A + Growing Academy, Inc., D/B/A A +growing Academy, Inc. Status: Closed Recommended Order on Wednesday, April 25, 2018.

Summary: Petitioner failed to prove the allegations by clear and convincing evidence. Recommendation: Dismiss the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 18 - 0042

A GROWING ACADEMY, INC., d/b/a

A GROWING ACADEMY, INC.,

Respondent.

_______________________________/

RECO MMENDED ORDER

On March 13, 2018, Administrative Law Judge Lynne A. Quimby -

Pennock of the Division of Administrative Hearings (DOAH)

conducted a duly - noticed hearing in this case in Bradenton,

Florida.

APPEARANCES

For Petitioner: Lisa Ajo, Esquire

Department of Children and Families

Suite 900

9393 North Florida Avenue

Tampa, Florida 33625

For Respondent: Peter Mackey, Esquire 1/

Catherine Z. Mackey, Esquire

Mackey Law Group, P.A.

1402 Third Avenue West

Bradenton, Florida 34205

STATEMENT OF THE ISSUE S

The issue s in this case are whether Respondent violated the

provisions of Florida Administrative Code Rule 65C - 22.001(11)

(2013), 2/ as alleged in the Administrative Complaint ; and , if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

On December 4, 2017, the Department of Children and Families

(Petitioner or the Department), filed an Administrative Complaint

(AC) aga inst Respondent, A Growing Academy, Inc., d/b/a A

Growing Academy Inc. (Respondent or Academy).

The allegations giving rise to this hearing included:

3. On October 16, 2017, Child Care

Regulation conducted an inspection at this

facility based on a com plaint received from a

collateral agency. The facility was found to

be in violation of Rule 65C - 22.001(11),

F.A.C. (2013), mandatory report of child

abuse. The owner, operator, and staff of a

child care facility are mandatory reporters

and have a duty to report suspected child

abuse or neglect as required by Section

39.201, Florida Statutes. The facility Ó s

director and staff failed to report a

suspected abuse of a child to the

Department Ó s abuse hotline. The hotline

received the abuse report from anothe r

source, about a week after the alleged

incident occurred.

4. According to the complaint, a teacher

witnessed another teacher Ð popping a child on

the mouth Ñ and informed the child Ó s

grandmother, who also works at the facility.

The alleged perpetrator w as L.G., [ 3/ ] a

teacher. During the inspection and

collateral agency Ó s investigation, Director

C.H. reported that a teacher, A.T., informed

her that another teacher, L.G., told her that

L.G. Ð popped a child on the mouth Ñ for biting

another child. C.H. cla imed that she did not

know she is required to call the abuse

hotline before conducting her own internal

inquiry. She also admitted to wanting to

interview the teachers first before reporting

because of a personal conflict between L.G.

and A.T. The collat eral agency arrived

before she concluded her internal

investigation. Child Care Regulation advised

the Director to immediately report suspected

abuse to a child, before even conducting an

internal inquiry.

5. A.T. confirmed her account of the alleged

ab use. At the time of the incident, she

turned around when she heard a child crying.

L.G., the other teacher in the classroom,

admitted to A.T. for hitting the child on the

mouth for biting another child. A.T. told

the child Ó s grandmother about this incid ent,

who also works at the facility. The

grandmother reported the incident to the

facility Ó s Director. Child Care Regulation

reminded A.T. about her duties as a mandated

reporter. The abuse report was made to the

abuse hotline [by] another source.

6. The collateral agency closed their

investigation on November 3, 2017, as not

substantiated for the abuse allegations.

Nevertheless, it is still the duty of the

facility Ó s Director and teachers to report

any suspicions of child abuse to the

Department Ó s a buse hotline, which they failed

to do.

The AC alleged that Respondent violated the provisions of

rule 65C - 22.001(11) by failing to file an abuse report as

directed by the rule. Such violations are described as Class 1

violations of the child care licen sing standards.

Class I violations are the most serious in nature, pose an

imminent threat to a child including abuse or neglect , and could

or do result in death or serious harm to the health, safety or

well - being of a child. See Fla . Admin . Code R . 65C -

2 2.010(1)(d)1.

Respondent timely filed a Ð Request for Administrative

Hearing. Ñ On January 4, 2018, the AC and Respondent Ó s request

were forwarded to DOAH. Following input from both parties, the

undersigned scheduled the case to be heard on March 13. The

hearing took place as scheduled.

At the fin al hearing, the Department requested that j udicial

n otice be taken of the following: section 402.302(3), Florida

Statutes (2017); section 39.201 , Florida Statutes (2017); and

r ule 65C - 22.001(11). The Department presented the testimony of

four witnesses: Colleen Clark, former child protective

investigator of the Manatee County Sheriff Ó s Office; Juliette

Linzmayer, compliance monitor for the Early Learning Coalition in

Manatee County, Incorporated; Aniko Barna - Roc he, DCF family

services counselor; and Mary Beth Wehnes, DCF regional safety

manager for the Child Care Regulation program. DCF offered three

exhibits which were received into evidence.

Respondent presented the testimony of Linda Gonzalez,

Respondent Ó s former employee, and Charlotte Johnson, Respondent Ó s

director. Respondent did not offer any exhibits.

At the conclusion of the hearing, the parties were advised

when their proposed recommended o rders (PROs) would be due. The

T ranscript was filed on Marc h 26, 2018, and a Notice of Filing

Transcript was issued setting for th the due date for the PROs.

Following one extension of time in which to file the PROs,

Petitioner timely filed its PRO. Respondent filed its PRO one

day late, but because the Recommend ed Order had not been issued,

and no objection was filed by Petitioner, Respondent Ó s PRO has

been considered along with Petitioner Ó s PRO in the preparation of

this Recommended Order.

On March 9, 2018 , the parties filed a Joint Pre - hearing

S tipulation. Th e parties agreed to several facts . H owever , the

testimony at hearing contradicted some of those admitted facts.

To the extent that any of those facts are relevant, they are

included below.

Unless otherwise indicated, all statutory references are to

the 2 017 version of the Florida Statutes. References to the

Florida Administrative Code Rules are to the version in effect at

the time of the allegation, unless otherwise indicated.

FINDING S OF FACT

1. The Department is the state agency responsible for

inspec ting, licensing, and monitoring child care facilities such

as the one operated by Respondent. It is the Department Ó s

responsibility to ensure that all such facilities are safe and

secure for the protection of the children utilizing those

facilities. The Department inspects each licensed day care

center several times a year. In the event of a complaint,

additional inspections and/or investigations are conducted.

2. Respondent is a licensed child care facility located in

Manatee County, Florida.

3. On Oc tober 12, 2017, Ms. Linzmayer received a complaint

from an anonymous source who said she worked at the Academy. As

a result of that complaint, Ms. Linzmayer was prompted to call

the Department Ó s abuse hotline.

4 . Ms. Clark was working as an investigator for the Manatee

County Sheriff Ó s Office, Child Protective Investigation Unit in

October 2017. When notified of the potential abuse allegation,

Ms. Clark conducted an investigation on October 12, 2017. The

scope of Ms. Clark Ó s investigation centered on th e allegations

that a teacher h ad hit a child in the mouth. Ms. Clark spoke

with employees at the Academy and then met with the alleged

victim (A.O.) and the child Ó s family at a local law enforcement

office.

5 . Ms. Clark Ó s investigation did not substantia te the case

(of actual abuse) because she did not have proof that something

did or did not happen. Ms. Clark notated that the Academy had

not contacted the abuse hotline regarding the suspected child

abuse and there was no incident report. 4/

6 . Ms. Barna - Roche conducts health, safety, routine and

renewal inspections, as well as complaint inspections of child

care facilities. After receiving the hotline abuse allegation,

Ms. Barna - Roche inspected the Academy and spoke with several of

its employees. As a result of her inspection, Ms. Barna - Roche

found that the Academy failed to report the alleged child abuse.

7 . The only first - person account of the alleged classroom

events of October 6, 2017 , was provided by Ms. Gonzalez, a former

teacher at the Academy. Ms. Gonzalez was in the two - year - old

classroom, with another teacher, Ms. Tover. Ms. Gonzalez

credibly testified that she did not Ð pop Ñ a child in the mouth,

and that she had never told Ms. Tover she had Ð popped Ñ or used

physical or inappropriate force r elative to A.O.

8 . Ms. Gonzalez provided a brief history of her association

with Ms. Tover, which was unflattering to both. For a time

Ms. Gonzalez lived in the same house with Ms. Tover and members

of Ms. Tover Ó s family. A disagreement arose regarding Ms.

Gonzalez Ó s dog, and Ms. Gonzalez was asked to leave the house.

In order to gather he r belongings from the house, Ms. Gonzalez

was forced to call law enforcement for assistance. This

disagreement appears to have spilled over to the Academy , where

bot h women worked.

9 . As part of her supervisory duties, Ms. Johnson (also

known as Ms. Charlotte or Charlotte Hill) makes it a point to

observe the children as they enter and leave the Academy. She

conducts these observations in order to address any potent ial

issues regarding a child Ó s well - being and to provide excellent

service to the children and their parents in the care provided.

1 0 . Ms. Johnson was not in the two - year - old classroom on

October 6, 2017, but observed the children entering and leaving

the Academy that day. Ms. Johnson did not see the alleged abuse

victim, A.O. , with a fat or bloody lip as he left Respondent Ó s

facility on October 6, 2017.

11 . Ms. Johnson was aware that Ms. Gonzalez had lived in

the same house as Ms. Tover and her sister, and Ms. Johnson knew

that Ms. Gonzalez moved out of the house prior to October 2017.

Ms. Johnson was aware of some i nterpersonal issues between

Ms. Tover and Ms. Gonzalez that were not associated with the

Academy.

12 . Both Ms. Gonzalez and Ms. Johnson a cknowledged being

mandatory reporters, and clearly testified that had either seen

or thought there was abuse, they would have reported it.

13 . As alleged in paragraph 4 of the AC above, in one

instance Ms. Tover is alleged to have Ð witnessed another teach er

Ò popping a child on the mouth Ó and informed the child Ó s

grandmother, who also works at the facility. Ñ Yet, in

paragraph 5 of the AC, Ms. Tover Ð confirmed her account of the

alleged abuse. At the time of the incident, she turned around

when she heard a child crying. Ñ ( e mphasis added) . Ms. Tover did

not testify at hearing. There is no evidence that any abuse

occurred.

14 . The testimony provided by Ms. Linzmayer, Ms. Clark, and

Ms. Barna - Roche relies upon hearsay, and in some cases hearsay

upon hearsa y. Their testimony is found to be insufficient to

meet the burden in this proceeding.

15 . The lack of direct evidence of the alleged abuse is

troublesome. The indication that Ms. Tover Ð witnessed Ñ the abuse

or turned around after she heard a two - year - ol d child cry and was

told something occurred is insufficient to overcome the direct

testimony of the alleged perpetrator, who denied the accusation.

It is true that additional training in spotting child abuse or

suspected child abuse , and reporting such ab use or suspected

child abuse is warranted at the Academy ; however, the evidence is

not clear and convincing that any abuse, real or suspect,

occurred on October 6, 2017.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this action

in accordance with sections 120.569 and 120.57(1), Florida

Statutes.

17 . In cases where a state agency alleges that a licensee

engaged in wrongdoing, the burden is on the Department to prove

the wrongdoing. D ep Ó t of Banking and Fin. v. Osborne Stern &

Co. , 670 So. 2d 932, 934 (Fla. 1996). Factual findings based on

record evidence must be made indicating how the alleged conduct

violates the statutes or rules or otherwise justifies the

proposed sanctions. Maye s v. Dep Ó t of Child. and Fam. Servs. ,

801 So. 2d 980, 982 (Fla. 1st DCA 2001).

18 . The standard of proof in this case is clear and

convincing evidence because the Department is seeking to

discipline Respondent Ó s license, thus making the matter penal in

na ture. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

19 . The clear and convincing evidence standard is greater

than the preponderance of the evidence standard used in most

administrative proceedings. The clear and convincing standard is

quite stringe nt. It has been described as follows:

[C]lear and convincing evidence requires that

the 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 witne sses

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 established.

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

2 0 . The Florida Supreme Court later adopted the Slomowitz

court Ó 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 Ð [a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous. Ñ Westinghouse Elec. Corp.

v. Shuler B ros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

21 . The Department is authorized by section 402.310,

Florida Statutes, to impose sanctions against child care

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

Department Ð may administer . . . disciplinary sanctions for a

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

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

22 . Rule 65C - 22.001(11) , Child Safety , provides the

following:

(a) Acts or omissions that meet the

definit ion of child abuse or neglect provided

in Chapter 39, F.S., constitute a violation

of the standards in Sections 402.301 - .319,

F.S., and shall support imposition of a

sanction, as provided in Section 402.310,

F.S.

(b) Failure to perform the duties of a

ma ndatory reporter pursuant to Section

39.201, F.S., constitutes a violation of the

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

23 . In pertinent part, section 39.201 provides the

following:

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

reasonable cause to suspect , tha t a child is

abused, abandoned, or neglected by a parent,

legal custodian, caregiver, or other person

responsible for the child Ó 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 supervision and care shall report

such knowledge or suspicion to the department

in the manner prescribed in subsection (2).

(b) Any person who knows , or who has

reasonable cause to suspect , that a child is

abused by an adult other than a parent, legal

custodian, caregiver, or other person

responsible for the child Ó s welfare, as

defined in this chapter, shall report such

knowledge or suspicion to the department in

the manner prescribed in subsection (2).

(emphasis added).

24 . Section 39.01(2) defines Ð abuse Ñ as:

[A] ny willful act or threatened act that

results in any physical, mental, or sexual

abuse, injury, or harm that cause s or is

likely to cause the child Ó s 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 itsel f constitute abuse

when it does not result in harm to the child.

25 . In order for the Department to prove that the Academy

violated its duty to report under rule 65C - 22.001(11), the

Department had to prove by clear and convincing evidence that the

Academ y knew, or had reasonable cause to suspect, that the

incident on October 6, 2017, was Ð abuse Ñ within the meaning of

section 39.01(2).

26 . Moreover, the pertinent statutory provisions must be

strictly construed in the Academy Ó s favor. Munch v. Dep Ó t of

Pr of Ó l Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st

DCA 1992).

27 . There is no evidence to substantiate the claim that the

Academy knew or had reasonable cause to suspect that child abuse

occurred. Without such evidence, the Department cannot

demonstrate by clear and convincing evidence that the Academy

violated rule 65C - 22.001(11). The evidence strongly suggests

that there was a great deal of animosity between two of

Respondent Ó s workers who would go to unfortunate lengths to cause

problems.

RECOMMENDATION

Upon consideration of the evidence and testimony presented

at the final hearing, and based on the foregoing Findings of Fact

and Conclusions of Law, it is RECOMMENDED that the Department of

Children and Families enter a final order dismissi ng the

Administrative Complaint.

DONE AND ENTERED this 25th day of April , 2018 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 25th day of April , 2018 .

ENDNOTE S

1/ Mr. Mackey first entered his appearance at the hearing. The

DOAH docket reflects that Drew Chesanek, Esquire, of the

Mackey Law Group, P . A . , executed the Joint Response to the

Initial Order in January 2018. A Notice of Substitution of

Counsel was filed on March 7, 2018, introdu cing Catherine Mackey,

Esquire, to the file. A second Substitution of Counsel was filed

on March 12, 2018, reiterating that Ms. Mackey was stepping in

for Mr. Chesanek.

2 / Chapter 65C - 22 was revised and amended in October 2017.

Rule 65C - 22.001(11) was repealed and moved to the DCF Child Care

Facility Handbook , effective October 25, 2017. Both parties

agreed that rule 65C - 22.001(11) was the rule in effect when this

allegation arose.

3 / In order to protect the child Ó s privacy, the Recommended Order

re fers to the child and the parents by initials.

4 / An incident report (IR) is required when something happens to

a child at a child care center. The IR is shared with the

parents of the child or children involved in the incident, and

kept on file at the child care facility. In this instance, the

IR would have covered the alleged action of A.O . biting another

child , and a separate IR for the alleged Ð popping . Ñ

COPIES FURNISHED:

Lacey Kantor, Esquire

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Lisa Ajo, Esquire

Department of Children and Families

Suite 900

9393 North Florida Avenue

Tampa, Florida 33625

(eServed)

Peter Mackey, Esquire

Mackey Law Group, P.A.

1402 Third Avenue West

Bradenton, Florida 34205

(eServed)

Catherine Z. Mackey, Esquire

Mackey Law Group, P.A.

1402 Third Avenue West

Bradenton, Florida 34205

(eServed)

John Jackson, Acting General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

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

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.