vs. ) CASE NO. 84-3338
Respondent. )
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 10, 1985, in Miami, Florida. The parties completed their posthearing submissions on May 1, 1985.
Petitioner Department of Health and Rehabilitative Services was represented by Leonard Helfand, Esquire, Miami, Florida; and Respondents Jacob and Donna Vermeulen were represented by Thomas J. Walsh, Esquire Homestead, Florida.
Petitioner filed an Administrative Complaint seeking to revoke Respondents' license to operate a foster home, and Respondents timely requested a formal hearing on the allegations contained within that Administrative Complaint.
Accordingly, the issues for determination are whether Respondents are guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.
Petitioner presented the testimony of Josephine Perez, M.D.; Evelyn Holmes; Tamar Sweeney; Judith Lederhandler, M.D.; Rhonda Cooley; Bonnie Marks; and Lourdes Villaba. Petitioner's Exhibits numbered 2 through 6 were admitted in evidence.
Both Respondents testified on their own behalf and a presented the testimony of Debbie Froug, Elizabeth Mitchell, and Jill Clark.
Petitioner was granted leave to take posthearing the deposition of Mildred Essnan, a rebuttal witness. That deposition was not transcribed; rather, the parties filed on April 11, 1985, their Stipulation as to Testimony of Mildred Essman. That Stipulation and transmittal letter have been marked as Late-filed Exhibit numbered 7 and are now part of the evidentiary record in this cause.
A copy of the transcript of proceedings was filed on March 12, 1985, and Petitioner filed the original transcript on May 9, 1985. Since the original contains the editorial markings of Petitioner's attorney, the copy was utilized by the undersigned in preparation of this Recommended Order.
Proposed recommended orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended
Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.
In August, 1980, the home of Jacob and Donna Vermeulen was licensed by Petitioner as a pre-school foster home. Under that licensure, the Vermeulens were able to care for children from birth to four years of age.
The subject of this proceeding, hereinafter referred to as S.L., was born on May 26, 1976. When S.L. was four years old he and his younger sister were removed from the custody of his natural mother (after he witnessed the homicide by bludgeoning of his father by his mother) because S.L. and his sister had been physically abused by both natural parents. Petitioner placed S.L. and his sister into the Vermeu1en foster home.
After S.L. and his sister had been living with the Vermeulens for approximately six months, Petitioner removed them from the Vermeulen home and returned them to the custody of their natural mother. After approximately six months, the two children were again removed from their natural mother since she again physically abused them.
Petitioner requested the Vermeulens to again take custody of S.L. and his sister. The Vermeulens were reluctant to do so since both S.L, and his sister were now older than was allowed under the Vermeulens' license, and because S.L. had problems relating with the other foster children living in that home during his first stay there. However, Petitioner's social workers begged the Vermeulens to take the children back since Petitioner was unable to find any other placement for S.L. The Vermeulens agreed to make their home available to
S.L. and his sister, and the two children thereafter lived in the Vermeulen home for approximately two and one-half years prior to April 16, 1984.
S.L. is a difficult child to care for; he is very emotional, developmentally immature, fearful, and fidgety. He has difficulty sleeping or listening, has a very low self-esteem, and is unable to complete tasks since he becomes emotionally frustrated. Not only is S.L. a clumsy child (most probably due to medication), he also throws himself onto the floor and onto his toys, both as part of his aggressive play behavior and also in conjunction with throwing temper tantrums. S.L. initiates fights in school, on the school bus and at home with the other children in the Vermeulen home to such an extent that fighting somewhere would have been almost a daily occurrence. His excessive demands for attention were often accompanied by negative behavior, such as hitting other children and throwing temper tantrums.
On December 21, 1983, S.L. was evaluated by psychiatrist Josephine Perez. Perez diagnosed S.L. as suffering from Attention Deficit Disorder with Hyperactivity. Perez determined that the high dosages of anti-psychoic medication that S.L. had been taking were inappropriate, and she prescribed different medication for him. Perez recalls that during S.L.'s initial evaluation in December she noticed that his legs and arms were filled with bruises.
S.L. began treating weekly with Perez from January 16, 1984, until April 16, 1984. On each visit at least one of the Vermeulens was present, and each visit contained a seasion between Perez and the foster parent discussing the child's progress and training the foster parent in the use of behavioral modification techniques. During those several months S.L. appeared at Perez's office on one occasion with a black eye and on another occasion with a bruising above his eye. One injury resulted from a fall in the bath tub, and another resulted from a fall out of bed; both falls were probably attributable to changes Perez made in S.L.'s medication. The Vermeulens discussed both incidents with Perez since they were concerned that S.L,'s medication was still not in the proper dosage. The Vermeulens testified that sometimes when S.L.'s medication was changed, he was unable to control even his arms and was unable to sit still long enough to eat.
In January, 1984, when S.L. began treating with Dr. Perez there were six children living in the Vermeulen home: four foster children, one adopted child, and one natural child. The Vermeulens and Dr. Perez discussed the number of children living in the Vermeulen home, which prohibited giving S.L. the excessive amount of time required by him to satisfy his need for attention. Perez told the Vermeulens that in her professional opinion S.L. should be in a home with no more than one other child. In turn, the Vermeulens told Perez that they had been requesting Petitioner to remove S.L. from their home out of their concern (1) for S.L. since he needed so much more attention than was available to him and (2) for the other children not only because S.L. would kick and hit them but also because the Vermeulens had discovered S.L. in his sister's bedroom standing over her with a knife in his hand on two occasions. Although Perez agreed that S.L. should be placed a different foster setting, she did nothing to assist in obtaining a different placement and did not discuss with any employee of the Petitioner ("HRS") her recommendation and the Vermeulens' desire that
S.L. be placed in a setting, preferably, where he was the only child. The Vermeulens, however, continued to request of HRS employees, including the visiting social workers and medical personnel, that S.L. be removed from their home, with visitation rights being given to the Vermeulens if possible.
During this time period the Vermeulens determined that they wished to adopt Michelle, a foster child in their care. On Friday, April 13, 1984, an HRS employee went to the Vermeulen home to discuss that petition for adoption and to advise the Vermeulens that HRS would not allow them to adopt Michelle. Mr. and Mrs. Vermeulen S.L., and the rest of the children living in the home were present during that discussion.
The Vermeulens were advised that they would not be permitted to adopt Michelle so long as S.L. was living in their home since he is a "therapeutic foster child" and Petitioner's rules would prohibit the adoption while a "therapeutic child" was in the home. Mrs. Vermeulen was unable to understand Petitioner's position: its refusal to remove S.L. from her home after repeated requests and its refusal to allow her to adopt Michelle for the reason that S.L. was in her home. Mrs. Vermeulen became upset, and S.L. told her and Petitioner's employee to put him in a foster home indicating he would rather be sent away than prevent Michelle from being adopted by the Vermeulens. Since the HRS employee was having a difficult time discussing HRS's position, she left the Vermeulen home.
On Friday, April 13, 1984, or on Monday, April 16, 1984, S.L. became involved in a fight on the school bus on the way home from school. The bus driver told Mrs. Vermeulen about the fight.
On Monday April 16, 1984, Mrs. Vermeulen took S.L. to his weekly therapy session with Dr. Perez. During that session, S.L. indicated to Perez that he had been bad and had been "paddled" on the legs. He would give her no details, but Perez believed it was Donna Vermeulen who paddled S.L. Rather than discuss it with Mrs. Vermeulen, Perez acted as though nothing had been said. Further, although a medical doctor, she did not examine S.L. Instead, Perez discussed with Mrs. Vermeulen behavioral modification techniques to be utilized with S.L. and sent them home. She then telephoned HRS, and a child abuse report was completed.
On April 18, 1984, an HRS employee went to S.L.'s school, removed the child from his class, and took the child to be examined by the Child Protection Team. S.L. was first examined by the nurse. When S.L. was unable to explain to the nurse from where each mark on his body originated (or refused to), she interrogated him with questions such as "Did your mommy hit you?" The nurse made notations on a chart indicating numerous marks or bruises on S.L.'s body. However, an HRS employee saw S.L. disrobed when he was being examined by the doctor on the team and saw only two marks on his lower back.
Other HRS employees went to the Vermeulen home and removed all the children. No one discussed the incident or accusation with either Mr. or Mrs. Vermeulen until the following day.
Until he was removed from her class on April 18, 1984, S.L. was taught by Debbie Froug an Exceptional Education teacher for emotionally disturbed children. Although Froug describes S.L. as a basically honest child, she testified that he sometimes gets very confused. A careful review of the videotaped testimony of S.L. and of the conflicting testimony of the witnesses in this case indicates that Froug's latter description is probably an understatement. No witness in this case heard the same explanation (or accusation) as any other witness. S.L's videotaped testimony illustrates why: there is no statement made by S.L. that is not contradicted by him a few seconds later. For example the videotaped deposition contains on page 27 the following:
O. Did you ever have a black eye?
A. No.
O. Didn't you talk to Dr. Perez about having a black eye once?
A. Yes, but I didn't.
How did you get the black eye?
One of the kids on the bus.
Things stated in the affirmative by S.L. in his deposition are also stated in the negative in that same deposition. Further, it is sometimes impossible to ascertain if S.L. is describing being hit by his real father, by his real mother, or by his foster mother. Although no accusation appears to ever have been made, including in the Administrative Complaint, that Jacob Vermeulen ever struck S.L., by the time of S.L.'s deposition eight months after the alleged incident when S.L. was asked if Jacob ever hit him, that question was answered in the affirmative.
In short, the evidence is clear that S.L. had some bruises or marks on his body on April 18, 1984; that those bruises or marks were both received accidentally and intentionally inflicted, and that the bruises or marks on
S.L.'s body were received as a result of S.L. falling from being uncoordinated or overmedicated, from S.L. flinging himself onto the floor or onto or against objects, and from being hit or kicked by other children with whom S.L. engaged in almost-daily physical combat.
Donna and Jacob Vermeulen used only approved behavior modification techniques with S.L. and did not hit S.L. with or without any object, spank S.L., or otherwise inflict physical abuse upon him.
Although the Vermeulens' license as a foster home was in effect at all times material hereto, it has lapsed. A foster home license is not automatically renewed but rather requires an annual licensing study. Other than "the incident" charged herein the Vermeulens have received no prior complaints from HRS.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
The Administrative Complaint filed herein charges Respondents with violating the provisions of Section 409.175, Florida Statutes, and Chapter 10M- 6, Florida Administrative Code, by using unacceptable disciplinary practices, to-wit: corporal punishment. The specific allegations are that (1) Donna Vermeulen "belted" S.L. on April 16, 1984, and (2) Donna Vermeulen hit or spanked S.L. on a regular basis. No charges are made against Jacob Vermeulen.
The Administrative Complaint fails to identify the portion of Section 409.175, Florida Statutes, or the Section of Chapter 10M-6, Florida Administrative Code, which Respondent(s) is charged with violating. Assumedly, the intended portion of Section 409.175 is subsection (4) which provides that:
Any such license may be revoked by order of the department for violation of the regula tions of the department governing the activities of the licensee.
The only regulation of the department cited in the Administrative Complaint is "Chapter 10M-6.2(i)," which does not exist. At the conclusion of the final hearing in this case, however, Petitioner's attorney advised that Section 10M- 6.05(J)(3), Florida Administrative Code was the applicable regulation. It is assumed that the section intended to have been cited is 10M-6.05(3)(j) Florida Administrative Code, which provides in pertinent part, as follows:
Prohibited disciplinary practices include . . . hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse. . .
Since Petitioner has failed to prove that Respondent(s) used hitting or spanking as a means of discipline of S.L., it has also failed to prove that Respondent(s) violated Section 409.175, Florida Statutes, or Chapter 10M-6, Florida Administrative Code, as alleged in the Administrative Complaint filed herein. Petitioner has relied on a child of less than eight years of age, with the background of S.L., whose testimony is at variance with the testimony of ail
of Petitioner's other witnesses. Further, S.L.'s testimony is full of confusion, doubt, ambiguity, and contradiction. Since the testimony of Petitioner's witnesses is based upon S.L.'s contradictory statements, that testimony is as defective as the statements upon which it is based.
Although confused beyond comprehension the videotaped testimony of
S.L. is understandable in view of the child's family history. He was abused by his natural parents; he watched his mother bludgeon his father; he was taken from his natural mother at a young age on two separate occasions, he had been in the Vermeulen home on two separate occasions, and the evidence indicates that he may have also experienced other foster placements. Yet, his testimony is not credible in that he becomes frequently confused as to whom he is speaking about as well as about the event that he is discussing. It is probable that S.L. recalls an event during which he was physically abused but no longer has an understanding of when that event occurred and who the participant in that event truly was.
The Vermeulens' foster home license had lapsed by the time of the final hearing in this cause, and no application for renewal or extension has been made pending the outcome of this cause. It is appropriate that HRS now conduct any licensing. study required of it for the renewal or extension of the Vermeulens' foster home licensure eliminating any consideration of the allegations forming the basis of the Administrative Complaint filed herein. In other words, Petitioner shall consider in its licensing study all relevant factors other than the matters pertaining to S.L. in arriving at a decision whether to extend the Respondents' license.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is REC0MENDED that a Final Order be entered dismissing with prejudice the
Administrative Complaint filed herein and directing that any licensure study performed regarding the renewal or extension of Respondents' license be made omitting therefrom consideration of any of the matters set forth herein.
DONE and RECOMMENDED this 19th day of July, 1985 at Tallahassee, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 19th day of July,1985.
401 N.W. 2nd Avenue, Suite 1070 Miami, Florida 33128
Thomas J. Walsh, Esquire
