20-002100 Department Of Children And Families vs. Kiddie Island Academy, Llc Status: Closed Recommended Order on Wednesday, June 22, 2022.

Summary: To impose sanctions DCF must prove violation with clear & convincing evidence. DCF did not prove child abuse by provider. "Abuse" is more than improper care. Alleged abuse must cause or be likely to cause significant impairment to physical health.

Facility Handbook (Handbook) of Petitioner , Department of Children and

F amilies (Department)? 1

B. If so, what is the proper sanction?

C. Did Kiddie Island fail to report suspected child abuse as required by

section 39.201, as implemented by s ection 8.2(B) of the Handbook?

D. If so, what is the proper sanction?

P RELIMINARY S TA TEMENT

On March 17, 2020, the Department issued an Administrative Complaint

(Complaint) charging Kiddie Island with abusing a child in violation of

s ection 8.2(A) of the Handbook. The Complaint also alleged that Kiddie

Island violated the mandatory reporti ng requirements of section 39.201,

Florida Statutes, and the implementing requirements of Handbook section

8.2(B), by not reporting the alleged abuse. The Department proposed to

impose fines totaling $1,000.00. Kiddie Island requested a formal

administrati ve hearing to contest the charges. On May 1, 2020, the

Department referred the matter to the Division to conduct the hearing. The hearing was scheduled for July 7 and 8, 2020. It was rescheduled to August 4

and 5, 2020, by an order granting the Department' s Motion for Unopposed

Continuance. It was held as scheduled.

The Department presented testimony of Sierra Bruner, James Palmer,

and Maria Varela. Department Exhibits 1 through 3, 5, 6, 8 through 1 0, 12,

14 through 16, 18, and 20 through 26 were admitted into evidence.

Kiddie Island presented testimony from Lein Domin g uez, Migdalys

Fernandez, Amdeli Matos, Ana Perdomo, Diana Varela, and Maria Varela.

Kiddie Island Exhibits 1, 2, a nd 4 were admitted.

1 All ci tations to Florida Statutes are to the 2019 codification unless otherwise noted.

The T ranscript of the proceeding was filed September 1 1, 2020. The

parties timely filed proposed recommended orders. They have been

considered in the preparation of this Recommended Order. 2

In the course of this proceeding Kiddie Island mad e vague statements

about including a rule challenge or challenge to a statement as an unadopted

rule in its defense . Kiddie Island's pleadings do not assert matters sufficient

to raise those issues under the standards of section s 120.56 (1) or 120.56(4),

Florida Statutes , incorporated by reference in section 120.57(1)(e). In

addition Kiddie I sland did not advance the s e argument s in its proposed

recommended order , which is the most recent and complete statement of

Kiddie Island's claims. Since the arguments are not included in the p roposed

r ecommended o rder they are deemed aba ndoned. Wickham v. State , 124 So.

3d 841, 860 (Fla. 2013) (Failure to pursue a claim amounts to abandonment

of the claim.)

F INDINGS OF F ACT

1. The Department is the state agency charged with licensing child care

facilities.

2. Kiddie Island holds a child care facility license from the Department,

authorizing it to care for 165 children. Maria Varela was the owner and

director of Kiddie Island at all time s material to this matter. Kiddie Island

employed her daughter, Diana Varela, as a caregiver at all tim es material to

this matter. Until this matter, the Department had never sanctioned Kiddie Island or received any allegations of abuse by Kiddie Island.

3. K.H. was one of the children for whom Kiddie Island provided child

care . At the time of events that a re the subject of this proceeding, K.H. was

2 This Recommended Order issues after the 30 - day period established by Florida

Administrative Code Rule 28 - 106.216 due to unanticipated surgery for the undersigned.

just over one year and nine months old. The entire incident upon which the

Department bases its charges was videotaped.

4. On October 8, 2019, Diana Varela and K.H. were sitting on the floor

together beside a small mat or other bedding. K.H. was fidgeting and started

to pull herself up on a swinging gate.

5. Diana Varela pushed K.H. down and onto the bedding on her stomach.

She did not push K.H. forcefully, strike her, or lift K.H. off the floor. Her

hand and arm never left K.H.'s body. Diana Varela patted K.H.'s diapered,

and therefore cushioned, bottom four times. She did not forcefully strike or

spank. Diana Varela then covered K.H. with a small child's blanket. The video recording of the incident and the fi rst - hand testimony about the

incident do not indicate that K.H. was injured, that K.H. cried out, or that K.H. was upset.

6 . Diana Varela then stood up and walked away from K.H. Shortly after

Diana pushed K.H. to the bedding, K.H. sat up and slid the blank et off. Right

after that , Diana Varela returned and grasped K.H.'s left arm. She pulled

K.H. to her feet and along around a corner, beyond view of the video camera. Nothing in the video recordi ng of the incident or the first - hand testimony

about it indicat es that K.H. was injured, that K.H. cried out, or that K.H. was

upset.

7 . Diana Varela's actions were willful, in that she intended to take the

actions that she took. There is no persuasive evidence indicating that Diana Varela's actions caused a significa nt impairment of K.H.'s physical, mental,

or emotional health.

8 . On October 8 or 9, 2019 , K.H.'s mother came to Kiddie Island to review

a video recording of the day's events with Maria Varela because K.H.'s mother had a question about a mark on K.H.'s fac e.

3 That mark and the

circumstances surrounding it are not part of the charges here or mentioned in

the Complaint . However, the mark was the catalyst for K.H.'s mother

3 The evi dence about the date is inconsistent. The date would not affect the dispositive facts.

reviewing the video of events described above. Maria Varela learned of the

incident invo lving Diana Varela for the first time when reviewing the video

with K.H.'s mother.

9 . After viewing the video and leaving Kiddie Island, K.H.'s mother called

the child's father and asked him to pick up K.H. He did, and the parents

withdrew K.H. from Kiddi e Island.

10 . Maria Varela determined that Diana Varela did not hand le the child

properly. Maria Varela placed Diana Varela on a c orrective action p lan. It

included a three - month probation period during which Diana Varela was not

permitted to be in a class room alone and was not assigned to any classroom.

The plan also required Diana Varela to conduct research and take trainings.

Furthermore, Kiddie Island suspended Diana Varela without pay for two

weeks.

11 . Kiddie Island also established a facility correct ive action plan. It called

for the director or assistant director to review facility monitoring videos at

the end of each day . The plan further committed Kiddie Island to

immediately correct any deficient behavior observed .

12 . Kiddie Island did not make a n abuse report to the Department of the

incident on October 8 , 2019. Maria Varela was aware of the requirement to

report abuse to the Department. She did not report the incident because she did not believe that it was abuse.

C ONCLUSIONS OF L AW

1 3 . Section s 120.569 and 120.57(1), Florida Statutes (2020), grant the

Division jurisdiction over the parties to and the subject matter of this proceeding.

1 4 . The Legislature has charged the Department with the responsibility of

licensing child care facilities. §§ 4 02.301 - 402.319, Fla. Stat. (2020). This

includes responsibility for imposing sanctions for violations of statute s or

rule s . § 402.310, Fla. Stat.

1 5 . The Department must prove the grounds for sanctioning Kiddie Island

by clear and convincing evidence. De p't of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987); Coke v. Dep't of Child. & Fam. Servs. , 704 So. 2d 726 (Fla. 5th DCA

1998).

16. The opinion in Evans Packing Company v. Department o f Agriculture

and Consumer Services , 550 So. 2d 112, 116 n. 5 (Fla. 1st DCA 1989) , defined

clear and convincing evidence as follows:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to which the witnesses tes tify must be distinctly

remembered; the evidence 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 the firm belief of 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).

17. Also, in disciplinary proceedings, the statutes and rules for which a

violation is alleged must b e strictly construed in favor of a respondent.

Elmariah v. Dep't of Prof'l Reg. , 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v.

Dep't of Prof'l Reg. , 534 So. 2d 782, 784 (Fla. 1st DCA 1988).

1 8. Sections 402.301 through 402.319 establish general guidelines for

Department regulation of child care facilities. Section 402. 305( 1)(c) empowers

the Department to adopt rules implementing the standards of s ections

402.301 through 402.319. The Handbook, incorporated by reference in

Florida Administrative Code Rule 65C - 22.01(6), establishes Department

licensing standards for child care facilities.

4

1 9. The Department charges Kiddie Island with violating Handbook

s ection 8.2(A) . It provides:

4 The handbook may be reached at the Department’s website at

www.myflfamilies.com/childcare or through the following link:

http://www.flrules.org/Gateway/reference.asp?N o=Ref - 11491

Acts or omissions that meet the definition of child

abuse or neglect provided i n Chapter 39, F.S. or

Chapter 827, F.S., constitute a violation of the

standards is [sic] section 402.301 - .319, F.S., and

will support imposition of a sanction, as provided in

Section 402.310, F.S.

20. Here the Department charges Kiddie Island with child abuse. Section

39.01(2) defines abuse as "any willful act or threatened act that results in any

physical, mental, or sexual abuse, injury, or harm that causes or is likely to

cause the child’s physical, mental, or emotional health to be significantly

impai red." This does not encompass every inappropriate, ill - considered, or

improper treatment of a child. "Abuse" is something more than poor or even

unacceptable child care.

2 1. For instance the opinion in In re S.W . , 581 So. 2d 234 (Fla. 4 th DCA

1991) , deter mined that striking a child with a belt hard enough to leave

bruises did not amount to "abuse." The court reversed an adjudication of

dependency because the evidence was "simply insufficient to support a

finding of abuse." Id. a t 235. The court explained i ts decision by focusing on

the requirement that a child's health be "sig nificantly impaired." It said:

"There was no evidence of significant impairment to the child caused by the

belt incident. No treatment was necessary for the injuries, and no one testif ied that the child was in any way emotionally impaired by the incident."

Id. See also In re W.P. , 534 So. 2d 905 (Fla. 2d DCA 1988) (Opinion reversed

adjudication of dependency. Father slapping child's face hard enough to leave

a mark and mother pulling ch ild's hair, neither of which acts required

medical attention, were n ot "abuse," in the absence of " testimony from any

witness that the slap or hair pulling significantly impaired W.P.'s physical, mental, or emotional health.") . Although the definition of " abuse" includes a

limitation for corporal punishment imposed by a parent or guardian, that

provision did not play into the S.W. and W.P. holdings.

2 2 . Section 827.03(1)(b) defines child abuse as "[i]ntentional infliction of

physical or mental injury upon a child" or "[a]n intentional act that could

reasonably be expected to result in physical or mental injury to a child … ."

Opinions interpreting section 827.03(1)(b) apply the same reasoning and

reach essentially the same conclusions about "abuse" as the op inions

interpreting section 39.01(2). See State v. Lanier , 979 So. 2d 365 (Fla. 4th

DCA 2008) (A caregiver intentionally stomping on a child's foot and leaving

no bruises or trauma that required treatment was not child abuse.) .

23. Section 827.03(1)(d) def ines "mental injury " as "injury to the

intellectual or psychological capacity of a child as evidenced by discernible and substantial impairment in the ability of the child to function with in the

normal range of performance and behavior as supported by exp ert

testimony."

2 4 . The record contains no evidence of mental injury or the likelihood of

mental injury as defined by statute. The record also does not establish by

clear and convincing evidence that the actions of Diana V a r e la, pushing K.H.

to the beddin g and patting her diapered bottom, or even pulling her up by one

arm and out of the room , could be reasonably expected to result in physical or

mental injury as defined by statute . Diana V a r e la's treatment of K.H. , while

understandably objectionable to K.H .'s parents and improper in Maria

V a r e la's judgment, did not amount to "abuse" as the Legislature has defined

it.

2 5 . The Department also charges Kiddie Island with violating Handbook

s ection 8.2(B) . It provides that , "failure to perform the duties of a ma ndatory

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

standards in Section 402.301 - .319, F.S." That charge rests wholly on the

Department's assertion that Diana Varela abused K.H. Since the Department

did not prove the alleged a buse, it did not prove the alleged failure to report.

5

5 The Department's complaint does not refer to Handbook section 2.8( F )(1) prohibiting "rough

or harsh handling of children" or section 8.2(C) prohibit ing "aggressive, demeaning, or

intimidating" interactions with children, both of which seem li ke they may have been more

appropriate charges.

2 6 . The Department proposes findings on and makes arguments about a

mark on K.H.'s face that is unrelated to the Diana Varela incident, which

Kiddie Island maintains resulted from K.H. pulling a toy down from a shelf.

The Complaint does not include allegations related to this matter. Therefore,

the Department cannot impose sanctions related to it.

2 7 . An agency may not impose punishment based on matters (either

factual or legal) not specifically alleg ed in its administrative complaint. Klein

v. Dep ' t of Bus . & Prof 'l Reg . , 625 So. 2d 1237 (Fla. 2d D CA 1993). See also

Trevisani v. Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A

physician may not be disciplined for an offense not charged in the

complaint."); Marcelin v. Dep't of Bus. & Prof'l Reg. , 753 So. 2d 745,

746 - 747 (Fla. 3d DCA 2000)("Marcelin first contends that the administrative

law judge found that he had committed three violations which were not

alleged in the administrative com p laint. This point is well taken… . We

strike these violations because they are outside the administrative

complaint."); and Delk v. Dep't of Prof'l Reg. , 595 So. 2d 966, 967 (Fla. 5th

DCA 1992)("[T]he conduct proved must legally fall within the statute or rule

claimed [in the administrative complaint] to have been violated."). The

Department did not prove the charges of the Administrative Complaint by

clear and convincing evidence.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of L aw, it is

recommended that the Department of Children and Families enter a final

order dismissing the Administrative Complaint.

D ONE A ND E NTERED this 26th day of October , 2020 , in Tallahassee, Leon

County, Florida.

J OHN D. C. N EWTON , II

Administr ative 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

t his 26th day of October , 2020 .

C OPIES F URNISHED :

George Gardner, Esquire

Department of Children and Families

Post Office Box 60085

Fort Myers, Florida 33906

(eServed)

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Rawsi Williams, Esquire

Rawsi Williams Law Group

701 Brickell Avenue , Suite 1550

Miami, Florida 33131

(eServed)

Javier A. Enriquez, Esquire

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Chad Poppell, Secretary

The D epartment of C hildren and F amilies

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.