STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES, )

)

Petitioner, )

)

v. ) CASE NO. 91-7202

)

RICHARD AND JEAN BURGETT, )

)

Respondents. )

)

RECOMMENDED ORDER

Following the provision of notice a formal hearing was held in this case on January 10, 1992, in Ocala, Florida. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCE

For Petitioner: Ralph J. McMurphy, Esquire

HRS-District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609

For Respondents: No Appearance

STATEMENT OF ISSUES

In this case Petitioner seeks to revoke the Respondents' foster home license premised upon allegations set forth in a complaint letter dated September 27, 1991 and under authority found in Section 409.175, Florida Statutes.

PRELIMINARY STATEMENT

On September 27, 1991 a complaint letter was served on the Respondents seeking the revocation of the foster home license held by the Respondents and advising the Respondents of their remedies. Those remedies included the opportunity for an appeal to challenge the decision to revoke. Such a request was timely made by Jean Burgett. This lead to a further request by the Petitioner to have the case heard before the Division of Administrative Hearings. The case was scheduled for hearing to be held on January 10, 1992. Notwithstanding the fact that notice was provided to the Respondents, they did not attend the hearing.

At hearing Petitioner presented the testimony of Glenna Clement, Theresa Stubblefield, the child R.K., Judy Hunt, Linda Smith, Theresa Kennedy, Timothy

Doud, Madeline Travers, Fred Cain, Patricia Gilman and Mary J. Rogers. Five exhibits by Petitioner were admitted.

Official recognition was accorded Chapter 10M-6, Florida Administrative Code.

A transcript was not requested. Therefore ten days were provided to present a proposed recommended order. Petitioner availed itself of that opportunity. An appendix to the recommended order addresses the proposed facts in that submission.

FINDINGS OF FACT

1. Respondents hold a family foster home license issued pursuant to Section 409.175, Florida Statutes. That license expires in April, 1992. (The Respondents had been initially issued a license for the period April 1990 through April 1991.) The license was issued following rigorous training provided to the wife Jean Burgett and a more abbreviated explanation of the responsibilities of foster parents that was provided to the husband, Richard Burgett. The wife is principally responsible for providing foster care under the terms of the license in that the husband's employment requires him to be away from the home frequently. It is the conduct by the wife that has subjected the license issued for the foster home at 17 Teak Course, Ocala, Florida to be placed in jeopardy premised upon allegations set forth in the complaint letter dated September 27, 1991.

   
   

2. In the initial training received by Jean Burgett and in the renewal of the license which took place in April 1991, Jean Burgett was made aware of Petitioner's disciplinary policy concerning children placed in foster care. That policy is especially important given the nature of the children who were placed with the Burgetts. The background of those children was that of young people who were abused, neglected or dependent. The initial training which Ms.

   Burgett was subjected to concerning matters of discipline was a setting in which the general emphasis was that of positive reinforcement of the children in an effort to promote self esteem and eventually gain control over any aberrant behavior and this general emphasis was tied into a more discrete block of training which was a three hour presentation on disciplinary matters. In furtherance of this instruction Jean Burgett was provided the Petitioner's policy manual which spoke to matters of discipline. In addition the Burgetts were made aware of the need to ensure confidentiality concerning the background of the children who were placed with them as it pertained to protections set out in Section 415.513(2), Florida Statutes. By this agreement the Respondents promised not to willfully or knowingly make public or disclose information that was contained in the child abuse registry or records of any child abuse case and to hold that information that came to the attention and knowledge of the Burgetts as privileged and confidential and not subject to disclosure to anyone other than authorized persons.

   
   

3. In agreeing to the terms set forth in the family foster home license Mrs. Burgett was made aware that the children in her care as a foster parent were not to be subjected to corporal punishment. Emphasis was placed on the need to promote self-esteem and the importance of this attempt because of the nature of the background of the children and the trauma that the children had been subjected to. An explanation was made to Mrs. Burgett that she was to be gentle and that she was to build up the self-esteem in the children as opposed to tearing down their self esteem. A great deal of time was spent in the training in that Mrs. Burgett had revealed that she was the subject of harsh

   discipline as a child and had noted her concerns about what was described as the "soft approach" to discipline contemplated by the Petitioner. Nonetheless, Mrs. Burgett agreed to undertake the methods contemplated by the Petitioner in dealing with disciplinary matters associated with foster children in her charge.

   
   

4. The complaint letter speaks of a general lack of judgment on the part of Mrs. Burgett concerning care of the children that were placed with her under the foster care program and the fact that the Petitioner's staff had participated in discussions with Mrs. Burgett about this problem. These observations are accurate for reasons which will be described below related to particular inappropriate conduct Mrs. Burgett is held accountable for.

   
   

5. One incident involved a four year old boy, Bucky, who had been placed with the Burgetts for foster care, in particular it was respite care from a shelter. That child had been undergoing toilet training and had been taken out of diapers and placed in what is referred to as "big boy pants" before he came to stay with Mrs. Burgett. Apparently for matters of her convenience she changed that regime and placed the child back in diapers. He resisted and went into a tantrum. Mrs. Burgett's response to that conduct was inappropriate and contrary to the training which she had received from Petitioner concerning responses to those episodes by a child. Mrs. Burgett threw the child on the bed striking his head and covered the child up with a pillow and placed herself on top of that pillow as a means of controlling the child. Mrs. Burgett was counseled by Patricia Gilman, an employee with Petitioner, concerning the inappropriate nature of this conduct.

   
   

6. In December 1990 Tina 16, Tracy 9, Trevor 7 and an infant Jordan were in foster care with Mrs. Burgett. Mrs. Burgett and the children had been to "Toys R Us" and in the course of that trip Tracy and Trevor caused a scene in the toy store. Mrs. Burgett responded to this situation by returning the children to her vehicle and proceeding to a Burger King restaurant to get something to eat. While at the restaurant Trevor said something that made Tina angry and Tina responded by throwing a drink on Trevor. In the fracas Mrs. Burgett tried to restrain Trevor by putting a hand over his mouth and in struggling with her in an attempt to get away Trevor banged his head on the back of the booth. These circumstances caused the manager of the restaurant to come over to where Mrs. Burgett and the children were located and while the manager was there and other persons were watching Mrs. Burgett remarked to the manager, "these are foster children and they have been damaged." This was an inappropriate comment which would not further the underlying goal of promoting self-esteem in those children. In describing the incident Mary J. Rogers, an operations program administrator for Petitioner, said that no license disciplinary action was taken at that time because Mrs. Rogers regarded the children as difficult to deal with and thought that Mrs. Burgett had demonstrated a willingness to become an acceptable foster parent when interviewed about the December 1990 incident at Burger King by improving her approach with the children in her care. With the advent of other inappropriate conduct by the Petitioner that took place beyond the point in time the Burger King incident occurred, the Petitioner was confronted with conduct so serious as to call for revocation of the foster home license.

   
   

7. Another incident about this time by Mrs. Burgett was attempting to counsel an 11 year old girl, Judy, who was in foster home placement with Mrs. Burgett. The subject of the counseling concerns sexual activity, and it included having the child draw male sex organs. Mrs. Rogers discussed this matter with Mrs. Burgett in December 1990 in the course of which conversation Mrs. Burgett said she was trying to help the child. Mrs. Burgett was advised

   that it was not appropriate for Mrs. Burgett to undertake counseling with the child because Mrs. Burgett was not qualified to do so.

   
   

8. In the December 1990 conference concerning the performance of Mrs. Burgett as a foster parent, the Petitioner agreed with the Respondent that no teenage foster children would be placed in Mrs. Burgett's home because Mrs. Burgett acknowledged having difficulty dealing with those children. Nonetheless, such placement was made in September 1991 upon agreement by Mrs. Burgett to such placement. This involved one teenage child from another foster home in which three children had been placed. The eldest child was a 13 year old girl, Rhonda K. and the other two children were younger brothers to Rhonda K., whose ages were 8 and 4. At the time of the placement of the children from the other foster home Mrs. Burgett was caring for three other foster children, Jeremick 5, Amanda 3, and an infant. The arrangement for respite care did not work out, in part due to the manner in which the Mrs. Burgett responded to Rhonda. This led to a request by Rhonda to be removed from Mrs. Burgett's home sooner than anticipated.

   
   

9. The reason for the placement of the three children from the other foster home concerned the need by that foster parent to tend to her dying father. Among the inappropriate actions by Mrs. Burgett concerning Rhonda was a remark to the effect that it was the child's fault that her "grandfather", meaning the father of the regular foster parent, was dying with cancer. As Rhonda described at the hearing, this remark by Mrs. Burgett "didn't make her feel good."

   
   

10. While Rhonda was staying with Mrs. Burgett, Mrs. Burgett asked Rhonda to slash the tires of the neighbor's vehicle and spray paint that neighbor's house. This was a neighbor that Mrs. Burgett did not get along with. Whatever disagreement Mrs. Burgett had with the neighbor, it was inappropriate behavior to recruit Rhonda to pursue Mrs. Burgett's ideas of unacceptable relations with a neighbor. It taught Rhonda the wrong social skills and commended inappropriate behavior.

    
    

11. In a couple of instances, Mrs. Burgett shown a flashlight into the bedroom window of the 4 year old twins of Theresa Kennedy, a neighbor of Mrs. Burgett. This was done in a harassing manner in the Spring or Summer of 1991. On another occasion in which Theresa Kennedy was at the house of Linda Smith, the neighbor whom Mrs. Burgett had advised Rhonda to slash the tires of the neighbor's vehicle, and paint the Smith house, Mrs. Burgett stood for several hours at the end of the driveway of the Smith home. This followed an argument at the Smith home between Mrs. Burgett and Mrs. Smith in the presence of the children, Jeremick and Amanda, which led to the sheriff's office being summoned by the Smiths. The children were then taken back to Mrs. Burgett's home and given that no other adult appeared to be in the home, and in particular Mr. Burgett, this meant that the children, Jeremick and Amanda and an infant, were left unattended for several hours.

    
    

12. Mrs. Smith had observed Mrs. Burgett yelling at Jeremick on a number of occasions. At times Mrs. Burgett would tell Jeremick "You can't play with other children in the neighborhood because they are bad." Twice she saw Mrs. Burgett yank Jeremick by the arm. Although Mrs. Smith did not believe that this contact was sufficient to cause physical damage to the child, she was concerned about the manner in which it was done.

    
    

13. Mrs. Rogers has observed a deterioration in Mrs. Burgett's attitude over time and an unwillingness to acknowledge that Mrs. Burgett has acted in an

    inappropriate way; an example being, that she denied the events that have been described relating to Rhonda or Mrs. Burgett's neighbors. In particular, Mrs. Burgett remarked that personnel with the Petitioner should believe Mrs. Burgett and not the children. Mrs. Burgett's attitude is one of hostility in the latter conference of September 13, 1991 between personnel of the Petitioner and Mrs.

    Burgett, in contrast to the interview of December 1990 in which a willingness had been expressed to work with the requirements incumbent upon Mrs. Burgett under Petitioner's policies on foster care. Mrs. Rogers expresses a reasonable belief that Mrs. Burgett might lose her temper and become physically abusive of the children in her care. Mrs. Burgett's attitude is one of deceit, and demonstrates an inclination to blame others for inappropriate conduct that is attributable to her.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

15. Petitioner seeks to revoke the family foster home license of Respondents in accordance with Section 409.175, Florida Statutes. Petitioner has made out that case. The children in the care of a foster home parent are troubled. They are to be nurtured in an attempt to bring about the quality of self-esteem which will allow them their fair measure of happiness. The actions by Mrs. Burgett, who is principally responsible for the licensed home, demonstrates an unwillingness, if not an inability, to meet her responsibilities under this license. License revocation is the correct response to that conduct.

RECOMMENDATION

Based upon a consideration of the facts found and conclusions of law reached, it is recommended that a Final Order be entered which revokes the family foster home license of Respondents to operate and provide foster care at

17 Teak Course, Ocala, Florida.

DONE and ENTERED this 22 day of January, 1992, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22 day of January, 1992.

APPENDIX CASE NO. 91-7202

The following discussion is given concerning the proposed facts by Petitioner:

Paragraph 1 is addressed in the preliminary statement.

Paragraphs 2-10 are subordinate to facts found except the last sentence which is rejected.

Paragraph 11 is not pled in the complaint letter and is therefore irrelevant. Paragraph 13 is rejected.

Paragraph 14 See discussion of Paragraph 11. Paragraph 15 is subordinate to facts found.

Paragraph 16 is not necessary to the resolution of the dispute.

Paragraphs 17-28 are subordinate to facts found except in the suggestion about inappropriate household duties which is rejected and not allowing Rhonda to talk to her regular foster mother or attend school which latter facts are not in the complaint letter.

Paragraph 29 is addressed in the preliminary statement. COPIES FURNISHED:

Ralph J. McMurphy, Esquire HRS-District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609

Richard and Jean Burgett

17 Teak Course Ocala, FL 32672

Sam Power, Department Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which top submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-007202

Orders for Case No: 91-007202