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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1638

)

KATHY BERGERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on August 23, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Carmen Dominguez Frick, Esquire

Pablo Perez, Esquire Caridad Planas, Esquire Department of Health and

Rehabilitative Services

401 Northwest Second Avenue, Suite 5424 Miami, Florida 33128

For Respondent: Scott Weinstein, Esquire

920 Biscayne Boulevard

19 West Flagler Street Miami, Florida 33130

STATEMENT OF THE ISSUES

The issue presented is whether the Respondent committed the offenses set forth in the Administrative Complaint filed in this case and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By certified letter dated February 14, 1989, Petitioner informed Respondent that Petitioner intended to revoke Respondent's family foster home license for failure to meet departmental standards as more specifically set forth in said letter. The letter forms the basis of the Administrative Complaint, as amended at the formal hearing, filed in this case. By certified letter dated February 23, 1989, Respondent requested an administrative hearing, and by letter dated March 23, 1989, Petitioner requested the Division of Administrative Hearings to appoint a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes (1987)

A prehearing conference was held immediately prior to the formal hearing.

At that time, the parties stipulated to the portions of the Administrative Complaint on which they would proceed, and Petitioner agreed to abandon those portions of the Administrative Complaint which the parties agreed not to pursue. The parties were instructed that Section 120.58(1), Florida Statutes (1987), controlled the admissibility of evidence in this hearing convened pursuant to Section 120.57(1). Respondent's counsel questioned the admissibility of hearsay under Section 120.58(1). Respondent's position was that hearsay evidence, which has not been corroborated, should not be received by the Hearing Officer, since it would then be seen or heard by the finder of fact. Counsel requested, and was granted, the opportunity to submit memoranda of law on the point. The admissibility of hearsay in an administrative hearing under Section 120.57(1) is addressed in the conclusions of law section of this recommended order.

The rules and standards which Respondent is charged with having violated are the following, as quoted from the Administrative Complaint:

1. Florida Administrative Code, Chapter 10M-6.05, Foster Home Requirements (4)(a). `The physical facilities of the foster home shall present no hazard to the safety of a foster child.'

2. HRS Manual 175-12A, Chapter 6, Section 6-4, 1.(2). `The premises must be free from objects, materials, and conditions which constitute a danger to children.

5. HRS Manual 175-12A, Chapter 6, Section

6-2., Foster Home Study, a.(1) `There is . . . care [sic] supervision and protection beyond the limits of the existing family to one or more foster children, and to manage the added stresses which are inevitable when care of an additional child is undertaken. . . .

Evaluating the capacity for commitment . . .

will depend . . . on . . . the applicant's effectiveness in coping with problems that arise in family life, employment and social relationships.'

On Petitioner's motion and without objection, official recognition was taken of the portions of the HRS Manual cited in the paragraph above and of the pertinent provision of the Florida Administrative Code. Petitioner presented the testimony of five witnesses and offered two exhibits which were received into evidence. Respondent testified on her own behalf and offered the testimony of five additional witnesses.

During the course of the hearing, Respondent offered various hearsay objections and motions to strike portions of the testimony. To expedite the progress of the hearing, and to give the parties an opportunity to submit memoranda discussed at the prehearing conference, ruling on the motions was reserved until the parties' memoranda could be filed and reviewed. Having considered the merits of the memoranda filed, Respondent's objections and motions to strike, reflected at pages 46, 78, 79, 80, 95, 97, 99 and 200 of the transcript of the instant proceeding, are denied. Section 120.58 (1)(a), Florida Statutes (1987)

At the conclusion of the Petitioner's case, Respondent moved for a directed verdict, ruling was reserved and Respondent proceeded with its case. The recommended ruling on the motion for directed verdict is incorporated in this recommended order.

A transcript of the proceeding was filed on September 20, 1989, and, by stipulation, the proposed findings of fact and conclusions of law were due, and timely received on October 2, 1989. A ruling on each proposed finding of fact has been made and is addressed in the Appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Kathy Bergerson, held a family foster home license for her residence issued by the Children, Youth and Family Program Office of Petitioner, Department of Health and Rehabilitative Services. As it relates to the license at issue, Respondent was first licensed by Petitioner in April 1987.

   
   

2. In her home, Respondent was responsible for several developmentally disabled children and a developmentally disabled adult. Respondent's mother lives in an apartment adjoining the home and has access to the residence. Respondent's mother is a registered nurse.

   
   

3. During the period since the licensure, the several incidents described in the following paragraphs occurred. Because the incidents involved Respondent or her home and the incidents were unexplained, Petitioner became concerned for the safety of the children in Respondent's care. The incidents at issue are as follows:

   
   

   1. Sometime during 1987 while one of the children was hospitalized, the child was discovered in what appeared to be a drug-induced sleep during a visit by Respondent. No harm to the child was demonstrated from the incident, and Respondent relayed the incident to Petitioner during her relicensure interview in 1988.

      
      

   2. Also, sometime in 1987, a housekeeper, provided by Metro-Dade County, allegedly assaulted Respondent's mother while attempting to steal toys and bed sheets from the home. No harm to the children was shown from the incident, and Respondent reported the incident to Petitioner during her relicensure interview in 1988.

      
      

   3. Then, early in 1988, Respondent received a delivery of medication which did not contain full amounts of the prescribed contents. The medication was delivered by a representative sent by Petitioner. No harm to the children was proven from the incident, and Respondent reported the incident to Petitioner.

      
      

   4. In July 1988, a report of the sexual abuse of the developmentally disabled adult living with Respondent was filed with Petitioner. The final disposition of the incident was not shown; however, neither Respondent nor Respondent's mother were classified as perpetrators of the alleged abuse.

      
      

   5. In September 1988, a child under Respondent's care, and custody was hospitalized after she became, untypically, lethargic and unresponsive when Respondent gave the child a dose of Panadol for her fever. Fearing that the child was allergic to the medicine, Respondent brought the bottle from which she had administered the medicine with them to the hospital, and reported her fear

      to the medical personnel at the hospital and to Petitioner. Although Petitioner asserted that the bottle of medicine was tested for its contents, the proof failed to demonstrate that a test was performed or the results of any such test.

      
      

4. Respondent kept the medication for the children in a locked cabinet in her kitchen. Included in the drugs in the cabinet were Panadol, Valium and Benedryl. In addition to Respondent, Respondent's mother and nurses provided by Petitioner, on occasion, had access to the cabinet. While Petitioner contended that the Panadol given to the child was adulterated with Valium and Benedryl, the proof failed to indicate that the Panadol was altered, or that the child suffered from the ingestion of the medication.

   
   

5. Petitioner asserted that it was unusual for a foster parent, such as Respondent, to have as many unexplained events reported within an almost two- year period. Therefore, based on the above incidents and what Petitioner perceived to be a pattern of unexplained incidents involving Respondent and her home, and after ordering a psychological evaluation of Respondent and her mother, Petitioner issued its notice of intent to revoke Respondent's family foster home license on February 14, 1989.

   
   

6. Petitioner alleged that Respondent was not capable of handling the stresses associated with maintaining a family foster home. At the hearing Respondent demonstrated a tendency to become overly excited; however, the proof failed to demonstrate that she is unable to handle the stresses of her life. Respondent is a caring person who has an obvious interest and concern for the children in her charge. She expressed deep concern over each of the incidents recited above and, in fact, reported the majority of the incidents to Petitioner.

   
   

7. Although the incidents described above generate concern, was not shown that the safety of the clients was endangered by the incidents.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes (1987).

   
   

9. As mentioned in the preliminary statement section of this recommended order, Respondent offered several hearsay objections to the admissibility of testimony and exhibits offered by Petitioner. It was Respondent's position that hearsay evidence, which has not been corroborated, should not be admitted since it would then be seen or heard by the finder of fact. Petitioner, on the other hand correctly argued that in a proceeding under Chapter 120, Florida Statutes (1987), hearsay evidence is admissible, to explain other competent evidence, but can only form the basis of a finding of fact if corroborated by competent evidence. The parties were granted leave to file memoranda of law on admissibility of hearsay in an administrative hearing under Section 120.57(1). The memoranda have been reviewed and considered. The following discussion is offered in response to the memoranda.

   
   

10. As announced to counsel at the prehearing conference, the admissibility of evidence in a formal hearing under Section 120.57(1) is governed by the provisions of Section 120.58(1)(a), Florida Statutes (1987), which states:

    1. In agency proceedings for a rule or order:

       1. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct

    of their affair shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. Any part

    of the evidence may be received in written form, and all testimony of parties and witnesses

    shall be made under oath. Hearsay 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 action. This paragraph applies only to proceedings under s. 120.57.

    
    

11. Thus, hearsay evidence is, clearly, admissible and may supplement other evidence; however it can not be used to form the basis of a finding of fact unless the hearsay would be admissible under the Florida Evidence Code, Chapter 90, Florida Statutes (1987), which governs the admissibility of hearsay in civil proceedings. The distinction to be drawn is between admissibility, and incorporation into the formation of finding of fact. Admissibility is allowed, but incorporation is not permissible without competent evidence which the hearsay evidence supplements or explains. The issue is well settled under McDonald v Department of Banking and Finance, 246 So.2d 569 (Fla. 1st DCA 1977), and its progeny.

    
    

12. At issue, here, was the admissibility of certain hearsay statements: the testimony by several of Petitioner's witnesses that they had been told that the Panadol was not pure and a written report of a licensing counselor for Petitioner.

    
    

13. As to the testimony, Respondent argued that the statements were inadmissible because the information contained within the statements was hearsay. Each of the statements at issue were clearly hearsay. However, as Petitioner argued, the receipt of the statement into evidence is not precluded merely because a statement is hearsay. However, the hearsay statements cannot be considered or incorporated into a finding of fact, unless corroborated. Here, none of the statements at issue were corroborated, or embodied in a finding of fact.

    
    

14. As to the report of the licensing counselor, Respondent correctly urges that Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986) is controlling. Petitioner argues that the report falls under the business record exception found at Section 90.803(6)(a), Florida Statutes (1987), and cites as supporting authority Wright v. Department of Education, Division of Blind Services, 523 So.2d 681 (Fla. 3d DCA 1988)

    
    

15. In Harris, the First District Court of Appeal reversed an order of the Game and Fresh Water Fish Commission as not being supported by competent, substantial evidence. There, the Game and Fresh Water Fish Commission offered the hearsay report of its investigator as competent evidence under the business records exception found in Section 90.803(6)(a). The Court stated:

    Assuming that appellee's reliance upon the business records exception can overcome the failure of the record on appeal to reflect the usual predicate required by Section 90.803(6)(a), the fact remains that the report would still not fall within the exception because the relevant information contained in the report is itself hearsay. The general rule is that a hearsay statement which includes another hearsay statement is admissible only when both statements conform to the requirements of a hearsay exception. Harris, at 808-809.

    
    

16. Thus, under Harris, a hearsay report may qualify for the exception found in Section 90.803(6)(a) only to the extent the information in the report does not itself contain hearsay which fails to meet, on its own, an exception.

    
    

17. In Wright, the Third District Court of Appeal affirmed an order of the Department of Education as supported by competent evidence. There, the hearing officer received under Section 90.803(6)(a) hearsay reports within the Department's files. At the hearing, however, testimony concerning the information in the file was presented, and significantly, testimony concerning the actual events in the reports was also received. Id. at 682-83.

    
    

18. Although the Wright Court affirmed the findings based on the reports, two distinctions are important here, the reports were received under Section 90.803(6)(a), and they were corroborated by other competent evidence. Wright, thus, shows that to the extent hearsay evidence, and the hearsay within the hearsay received by exception, is supported by competent evidence, the hearsay evidence may be used in the formation of a finding of fact. Wright, however, does not stand for the proposition, as presented by Petitioner, that evidence may form the basis of a finding of fact if, as in Wright, the evidence merely meets the three prong test that it: 1) is admitted under Section 90.803(6)(a);

    2) is relied upon by the proponent of the evidence; and 3) supports additional testimony, regardless of whether the testimony is uncorroborated hearsay.

    
    

19. Here, the report, at issue, is composed of documentation of the author's conversations with others about suspected events which occurred concerning Respondent, and, this is clearly hearsay. Some of the occurrences were substantiated by competent testimony during the proceeding, some were not. Under Harris, as further explained in Juste v. Department of Health and Rehabilitative Services, State of Florida, OFR/DPA, 520 So.2d 69, 71-72 (Fla. 1st DCA 1988), and Wright, those statements which were corroborated were incorporated into findings of fact, those which were not so proven were received as hearsay. 1/

    
    

20. A "family foster home" is a "private residence in which children who are unattended by a parent or legal guardian are provided 24-hour care. Such homes include . . . specialized foster homes for children with special needs." Section 409.175(2)(e), Florida Statutes (1987). Respondent's residence served as a family foster home and was licensed pursuant to Section 409.175(3), Florida Statues (1987).

21. Section 409.175(4)(a), Florida Statutes (1987), grants Petitioner the authority to adopt and amend licensing rules for family foster homes and establishes the requirements for licensure which include, in pertinent part, the following

    
    

    3. The appropriateness, safety, cleanliness, and general adequacy of the premises, including fire prevention and health standards, to provide for the physical comfort, care,

    and well-being of the children served.

    
    

22. Under Section 409.175(8)(b)2, Florida Statutes (1987), Petitioner, also, has the authority to revoke a family foster home license when a licensee violates "the provisions of this section or of licensing rules promulgated pursuant to this section."

    
    

23. Rule 10M-6.005, Florida Administrative Code, was adopted pursuant to Section 409.175, Florida Statutes. Pursuant to paragraph (2)(e) of said rule, it is provided that a family foster home license may be revoked any time a foster parent fails to "maintain minimum standards or to observe any limitations specified on the license certificate."

    
    

24. The Administrative Complaint filed in this case charges that Petitioner violated the standards set out below.

    
    

25. Rule 10M-6.005(4)(a), Florida Administrative Code, requires that, "The physical facilities of the foster home shall present no hazard to the safety of a foster child."

    
    

26. HRS Manual 175-12A, Chapter 6, Section 6-4, 1.(2), states, "The premises must be free from objects, materials, and conditions which constitute a danger to children."

    
    

27. HRS Manual 175-12A, Chapter 6, Section 6-2., Foster Home Study, a.(1), requires, in pertinent part, that

    
    

    . . . 'There is . . . care [sic] supervision and protection beyond the limits of the existing family to one or more foster children, and

    to manage the added stresses which are inevitable when care of an additional child is undertaken. . . Evaluating the capacity for commitment. . . will depend . . . the applicant's effectiveness in coping with problems that arise in family life, employment and social relationships.'

    
    

28. Petitioner has the burden to prove by a preponderance of the evidence that Respondent violated the above provisions and is, thus, not entitled to licensure. Here, Petitioner failed to sustain its burden.

    
    

29. Specifically, Petitioner argued that Respondent violated Rule 10M- 6.006(4)(a), because the drugs which she kept in a locked cabinet, accessible only to herself and trained medical personnel, were a hazard to the safety of the children since the Panadol administered to the child had become contaminated. An employee of the hospital to which the child was admitted offered hearsay testimony that she had read the child's chart, that the chart

    indicated that the Panadol had been adulterated, and that the child had the altered substance in her system. Other witnesses also offered their hearsay testimony that they had heard that the Panadol was contaminated. However, the hearsay was not corroborated and, as explained below, cannot be considered competent evidence or form the basis of a finding of fact. Since no competent evidence exists that the drug was tainted, the proof of this allegation is obviously unclear. Further, the drug was stored in a locked cabinet while at the home. Access to the cabinet was limited to Respondent, her medically trained mother and other nurses who assisted Respondent. No allegation was made that either Respondent's mother or the nurses misused their access, and no competent proof was elicited that Respondent herself debased the drug or misused her care of the cabinet. Clearly, sufficient safeguards were maintained for the drugs. No additional allegations were made concerning the physical facilities of the home. Accordingly, Petitioner failed to prove that Respondent violated Rule M-6.005(4)(a), Florida Administrative Code.

    
    

30. As to the alleged violation of HRS Manual 175-12A, Chapter 6, Section 6-4, 1.(2), requiring that the premises be free from objects which constitute a danger to children, Petitioner asserted the same facts stated in the previous paragraph to prove the instant allegation. The only remaining facts offered to support this allegation involved the testimony by Respondent concerning the prescriptions which were delivered to her home in less than the prescribed quantity. However, the proof failed to demonstrate that the medication was unsafe or that being without the required amount presented a hazard. Accordingly, for the reasons stated in the paragraph above, Petitioner failed to prove that Respondent violated HRS Manual 175-12A, Chapter 6, Section 6-4, 1.(2)

    
    

31. The final count of the Administrative Complaint charged that Respondent violated the provisions of HRS Manual 175-12A, Chapter 6, Section 6- 2, Foster Home Study, a.(1), through her inability to handle the stresses of maintaining a home for the children. As proof of her inability to handle stress, Petitioner argued that Respondent was unstable as demonstrated by her reports of the several, unexplained incidents arising at the home. Although it was demonstrated that Respondent did report a majority of the events to Petitioner, the nexus between her reporting matters which did affect the children to Petitioner and the reports serving as proof of her inability to handle stress is, at a minimum, unclear. It is true that a psychological evaluation of Respondent and her mother was ordered; however, no competent proof of the diagnosis was offered. Without such proof, an evaluation of Respondent's ability to handle stress and her failure to meet the requirements of HRS Manual 175-12A, Chapter 6, Section 6-2, Foster Home Study, a.(1), cannot be made. Petitioner failed to sustain its burden as to this allegation also.

    
    

32. Further, at the hearing, in the memorandum filed after the hearing, and through the testimony of Petitioner's witness, Petitioner argued that it was the failure of its investigation to uncover an explanation for the incidents in question, which supported the concern for the safety of the children in Respondent's charge. It was this concern which provoked the filing of the Administrative Complaint against Respondent. However, no basis in law has been shown that supports the premise that failure of an investigation by Petitioner to reveal an explanation for an incident gives credence to a finding that activities surrounding Respondent generated sufficient concern for the safety of the children as to result in the revocation of Respondent's license.

33. Based on the foregoing, the proof failed to demonstrate that Respondent committed the alleged offenses or that, under the circumstances demonstrated, sufficient justification exists for the revocation of Respondent's family foster home license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

Recommended that the Department of Health and Rehabilitative Services issue a Final Order withdrawing its intent to revoke Respondent's family foster home license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of December 1989.

JANE C. HAYMAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Park way Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of December 1989.

ENDNOTE

1/ The statements which were incorporated into the findings of fact were only used to explain other competent evidence and not as the basis of any particular finding of fact. It is further noted that although Petitioner offered the report, at issue, under Section 90.803(6)(a), the report is not received into evidence under that provision for failure to lay the appropriate foundation, and is received as hearsay, solely.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1638

The following represents the rulings accorded to Petitioner's proposed findings of fact, by paragraph number:

1. Incorporated in paragraph 1.

2. Incorporated in paragraph 2.

3. Subordinate to findings of fact.

4. Addressed in paragraph 5.

5. Addressed in paragraph 3c.

6. Addressed in paragraph 3a.

7. Addressed in paragraph 3e.

8. Not supported by competent and substantial evidence.

9. Subordinate to the result reached.

10. Not supported by competent and substantial evidence.

11. Addressed in paragraph 6.

The following represents the rulings accorded to Respondent's proposed findings of fact, by paragraph number.

1. Subordinate to the proceeding.

2. Addressed in paragraph 7.

3. Addressed in paragraph 7.

4. Conclusion of law.

COPIES FURNISHED:

Carmen Dominguez Frick, Esquire Pablo Perez, Esquire

Caridad Planas, Esquire Department of Health and

Rehabilitative Services

401 Northwest Second Avenue Suite 5424

Miami, Florida 33128

Scott Weinstein, Esquire 920 Biscayne Boulevard

19 West Flagler Street Miami, Florida 33130

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 89-001638

Orders for Case No: 89-001638