STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7361

)

LARRY AND KATHLEEN ABBOTT, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 6, 1992, a formal administrative hearing was held in this case in St. Petersburg, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: George W. Butler, Jr., Esquire

Screening Attorney District 5 Legal Office Department of Health and

Rehabilitative Services 701 94th Avenue North

St. Petersburg, Florida 33702

For Respondents: Kathleen Abbott

209 Westwood Terrace North St. Petersburg, Florida 33710

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should revoke or suspend the foster care license of Larry and Kathleen Abbott.

PRELIMINARY STATEMENT

By letter dated September 24, 1991, HRS notified Larry and Kathleen Abbott as follows:

After careful review of your foster care licensing file, we must inform you of our decision to seek revocation of your license. This decision is based on the following:

1. Failure to present a positive image and demonstrate respect for the child's own family.

2. Openly criticizing a child's biological family.

   
   

3. Failure to accept supervision by Department staff and satisfactorily participate in and support case plans for children in your home.

   
   

4. Failure to dispense medicine as prescribed by a physician.

These are clearly issues which raise questions about you ability to foster children and your willingness to be a "team member" in the foster care process.

Consequently, we are initiating revocation of your license.

The licensees timely requested formal administrative proceedings, and the matter was referred to the Division of Administrative Hearings on November 15, 1991.

Final hearing was scheduled for and held on February 6, 1992, in St. Petersburg, Florida.

At the final hearing, HRS called three witnesses and had Petitioner's Exhibits 1 through 5 admitted in evidence. Kathleen Abbott testified in behalf of the licensees and also had Respondent's Exhibit 1 admitted in evidence.

Neither party ordered the preparation of a transcript of the final hearing, and the parties were given until February 17, 1992, in which to file proposed recommended orders. The licensees filed a proposed recommended order of sorts1/; HRS did not file one. Explicit rulings on the proposed findings of fact contained in the licensees' proposed recommended order may be found in the attached Appendix to Recommended Order, Case No. 91-7361.

FINDINGS OF FACT

1. Larry and Kathleen Abbott have been licensed foster parents for a number of years. They were licensed in 1983 in HRS District 6 (Hillsborough County and Manatee County) and in 1986 in HRS District 5 (Pinellas County). Despite some criticism by HRS staff, their license was renewed annually since 1986. Their last license expired and was required to be renewed on October 25, 1991, after the commencement of this proceeding.

   
   

2. By their Agreement to Provide Foster Care for Dependent Children, the Abbotts agreed to "hold confidential all information about the child and his family" and to "discuss such information only with representatives of the Department or with appropriate specialists at the request of the Department."

   
   

3. On or about January 28, 1990, HRS initiated proceedings to place a female baby named Andrea, who was born on June 28, 1989, in shelter care due to her failure to thrive and her mother's lack of parenting skills. On or about February 23, 1990, the child was placed in foster care in accordance with a Performance Agreement. The goal under the Performance Agreement was to return the child to the care of her mother by August 31, 1990. (This goal was later extended to February 23, 1991.) However, meanwhile, due to the mother's lack of parenting skills and multiple allegations of abuse, the foster parents agreed

   not only to provide the child with adequate food, clothing, shelter, supervision and affection, but also to report to HRS any concerns regarding visitation with the mother.

   
   

4. Since the Abbotts were not Andrea's initial foster parents, they did not sign the Performance Agreement. However, although they never signed the agreement, when they became Andrea's foster parents on or about April 30, 1990, they also agreed to the terms of the Performance Agreement.

   
   

5. When the Abbotts got Andrea, she had a medical problem called "G.U. Reflux." HRS wanted the Abbotts to have this condition appropriately followed by a physician and wanted it documented by a physician that the problem had cleared. An appointment scheduled for this purpose had to be cancelled for some reason and, while discussing rescheduling the appointment with the physician's medical staff, Mrs. Abbott reported her observation that the problem already had cleared. Based on the report from Mrs. Abbott, the appointment was not rescheduled, and the physician closed the case based on Mrs. Abbott's report.

   
   

6. HRS apparently feels that the Abbotts were less than impartial in their evaluation of Andrea's medical condition. HRS witnesses asserted that the Abbotts decided early on that the child's symptoms that resulted in the G.U. Reflux diagnosis actually were caused by the natural mother's physical abuse and neglect of the child. The HRS witnesses contended that the Abbotts' beliefs warped their judgment and impelled them, inappropriately, to cancel the doctor appointment based on their beliefs, and in order to prove their beliefs to be correct. But the evidence in this case did not prove HRS' contentions.

   
   

7. From the outset of the Abbotts' foster care for Andrea, the Abbotts were very interested in knowing all of the background about Andrea, including the allegations against her natural mother. The natural mother was allowed to keep her two other children. The Abbotts were interested to know how the mother was caring for the other two children, in part as it might be relevant to the ultimate disposition of Andrea's case but also in part for the sake of the other children as well. Mrs. Abbott seemed to question whether the HRS investigations on the other children, which were closed as "unfounded," were properly conducted. But there is no evidence that the Abbotts did or said anything in these earlier time periods in their foster care for Andrea that HRS viewed to be improper.

   
   

8. At some point relatively early in the Abbotts' foster care of Andrea, Mrs. Abbott pointed out to her HRS foster care counselor that Andrea's name was similar to that of another child living in the home, and Mrs. Abbott wanted to know if it would be permissible to call Andrea by a nickname. The HRS counselor said that would be fine. Later, near the holidays in late 1990, Andrea's natural mother expressed concern to the HRS counselor that the Abbotts had been calling Andrea by the name Nicole and that she was not responding to Andrea any more. The HRS counselor spoke to the Abbotts and asked them to stop calling the child Nicole. She explained that, when she authorized the Abbotts to call Andrea by a nickname, she did not mean they could call her by a different proper name. The Abbotts, who now see the error of judgment that they made, immediately stopped calling the child Nicole.

   
   

9. As the goal of reunification by February 23, 1991, approached, Mrs. Abbott began to question the propriety of going ahead according to schedule.

   HRS protective services had raised questions regarding the natural mother's readiness to take care of Andrea. The HRS counselor also had made statements to Mrs. Abbott which made her suspicious that the counselor's supervisor would not

   make the decision to reunify the family on the basis of the best interests of the child. (It was intimated that the supervisor might be more concerned with her unit's statistics.) At bottom, the Abbotts thought reunification should be postponed; HRS, especially through the counselor's supervisor, took the position that reunification should go forward as scheduled.

   
   

10. The Abbotts also disapproved of the natural mother's male friend, who was cohabiting with her in her apartment. The HRS counselor told Mrs. Abbott that it was not permitted for the natural mother to have a male friend living with her in her apartment while she was receiving certain welfare benefits. She told Mrs. Abbott that the natural mother would be in trouble if the landlord knew. HRS asserted that Mrs. Abbott took it upon herself to tell the landlord, but there was no evidence upon which such a finding could be made.2/

    
    

11. One day, on or about January 11, 1991, the natural mother did not make a scheduled appointment for purposes of visitation with Andrea. Mrs. Abbott understood that the natural mother sometimes worked at the day care facility located at the apartment complex where the natural mother lived. This was the day care facility utilized by the natural mother for her other children. It was also proposed for Andrea after reunification. Mrs. Abbott identified herself to the day care director in terms of Andrea, the natural mother and the children at the day care. The natural mother was not there. No finding can be made as to the subject matter of the remainder of the conversation.3/

    
    

12. The day care director reported some of the conversation with Mrs. Abbott to the HRS protective services staff responsible for the children, who brought the matter of Mrs. Abbott's alleged "meddling" and "breach of confidentiality" to the attention of the HRS counselor and her supervisor. They reprimanded Mrs. Abbott, who became even more suspicious of HRS and its protective services staff.

    
    

13. On or about April 5, 1991, Andrea was returned to the Abbotts after a scheduled weekend visitation with the natural mother.4/ Mrs. Abbott observed marked and unusual redness and swelling in the child's genital area and became concerned that the natural mother's male friend might be sexually abusing the child. Although she thought it was diaper rash, the HRS foster care counselor authorized Mrs. Abbott to have the child examined by a physician at the Bayfront Medical Center. The doctor's nurse agreed with Mrs. Abbott that the redness was too concentrated to be diaper rash, reinforcing Mrs. Abbott's beliefs. The doctor prescribed Desitin and sitzbaths, and had Mrs. Abbott call back for test results. The eventual diagnosis was that the child had a bacterial staph infection.5/

    
    

14. Despite the diagnosis, Mrs. Abbott continued to maintain strong feelings that the child was being physically abused. These suspicions were instigated in part by comments from the doctor that the symptoms could come from being touched by dirty hands, from Mrs. Abbott's understanding that the natural mother's male friend worked as manager of an auto service station, and from her having seen him with dirty hands as a result of his work.6/

    
    

15. Mrs. Abbott had several discussions with the HRS foster care counselor about her suspicions. The HRS counselor was unable to convince Mrs. Abbott to drop her suspicions in light of the absence of solid evidence of sexual abuse.

    
    

16. Mrs. Abbott felt there were indications that Andrea was "severely traumatized" by visits with her natural mother. But HRS personnel perceived no evidence of this.

17. At this point, HRS and the Abbotts essentially disagreed as to how Andrea's case should proceed. HRS thought that there was no basis on which to change the goal of reunification. Mrs. Abbott felt that reunification should be postponed and also suggested that it was HRS' responsibility to secure a guardian ad litem. HRS decided that a meeting should be held among all concerned to resolve the disagreement. The meeting was held on or about April 9, 1991.7/ From opening remarks made by the counselor's supervisor, Mrs. Abbott felt that the purpose of the meeting was not to discuss the issues to reach a solution but to present a united HRS front to press forward for reunification. Mrs. Abbott felt that, in that atmosphere, there was no point in her speaking against reunification, but she continued to maintain her negative feelings about it and resolved in her mind to continue to oppose reunification on other fronts. She asked the HRS counselor if it was permissible to contact the chairperson of the reunification committee directly and was told that there was nothing to prevent her from doing so.

    
    

18. On or about April 11, 1991, the HRS counselor authorized Mrs. Abbott to have the child seen by a child protective team (CPT) physician. The CPT physician affirmed the previous diagnosis and prescribed an antibiotic.

    
    

19. The Abbotts did not immediately fill the prescription. They told the HRS counselor that they did not have Medicaid authorization to have the prescription filled through Medicaid. The counselor thought the authorizations had been sent to the Abbots but promised to send or deliver to them another one. On one occasion, when the counselor was at the Abbott house, the counselor went to her car to get the necessary form, but discovered she did not have any with her. On another occasion, the counselor was to give Mrs. Abbott the authorization form at a meeting they were at, but they both forgot to take care of that item of business. Meanwhile, the Abbotts continued to use Desitin.8/

    
    

20. On or about April 19, 1991, after the redness and swelling seemed to the Abbotts to be going away, the natural mother had Andrea for another overnight visit. Still suspicious, Mrs. Abbott had asked the HRS counselor to check the child's genital area as soon as possible after the visit. When the Abbotts got the child back from the HRS counselor, Mrs. Abbott checked the child herself and was surprised and upset to see more redness and swelling. She immediately telephoned HRS and spoke with the counselor's supervisor. She was instructed to bring the child to the child protection center immediately. When the CPT physician learned that the Abbotts had not yet started the prescription from over a week earlier, she became upset and threatened to telephone the Florida abuse registry to report the Abbotts for medical neglect for failure to obtain and administer the prescription. The HRS supervisor intervened and dissuaded the physician from making the call by assuring her that the prescription would be obtained and administered immediately.

    
    

21. The CPT physician's diagnosis was that, although sexual abuse could not be ruled out, the problem was more likely secondary to less than adequate diaper changing and persistence of the previous staph vaginitis.

    
    

22. Mrs. Abbott did not accept the diagnosis but continued to suspect sexual abuse. She opposed further visitation with the natural mother so long as the male friend resided in the same apartment.

    
    

23. Eventually, a reunification meeting was held. The Abbotts did not attend. It was decided to reunify the family. The Abbotts cooperated in making

    all necessary final arrangements to get Andrea ready. Reunification went forward on or about May 20, 1991.

    
    

24. After reunification, Mrs. Abbott continued to show interest in Andrea. After taking a two-week vacation, Mrs. Abbott got permission from the HRS counselor to telephone once a week to see how Andrea was doing. Mrs. Abbott also asked to know the name and address of Andrea's private day care, but the counselor said she could not have that information. After five weeks, the counselor's supervisor had the counselor cut off any further contact with the Abbotts concerning Andrea. Mrs. Abbott said to let her know if HRS had to take Andrea back. She said that she and her husband had much invested in caring for Andrea and that they felt as if she were their own child. If HRS had to take Andrea back, the Abbotts wanted her back and would be interested in adoption. Later, the Abbotts asked for another assignment essentially to help take their minds off of Andrea. On two occasions, Mrs. Abbott criticized the care being provided by other foster parents and suggested that the foster children be transferred to the Abbotts. HRS viewed this as evidence that the Abbotts had become so attached to Andrea that they had lost their good judgment.

    
    

    CONCLUSIONS OF LAW

    
    

25. Section 409.175(8)(a), Fla. Stat. (1991), authorizes the Petitioner, the Department of Health and Rehabilitative Services (HRS), to suspend or revoke a foster care license on any of the following grounds, listed in Section 409.175(8):

    
    

    1. An intentional or negligent act materially affecting the health or safety of children in the home or agency.

    2. A violation of the provisions of this section or of licensing rules promulgated pursuant to this section.

    3. Noncompliance with the requirements for good moral character as specified in paragraph (4)(a).

    4. Failure to dismiss personnel found in noncompliance with requirements for good moral character.

       
       

       Of these statutory provisions, only paragraphs 1 and 2 seem to apply to the facts of this case. The latter provision makes reference to promulgated rules.

       
       

26. F.A.C. Rule 10M-6.005 provides in pertinent part:

    
    

    1. General.

       * * *

       (c) Foster parents shall be involved and participate in case planning for children placed in their homes, which includes cooperating with the Department to implement visitation for children with their parents and being supportive of the efforts outlined in the Agreement or Plan as mandated in Section 409.618(3)(a)7., F.S.

       * * *

       (e) Foster parents shall consistently inform the foster care counselor of changes

       in . . . relationships which may affect the lives of foster children in their homes.

       * * *

    2. Licensing Policy and Procedures. Any exceptions to the following policies and procedures shall be for good cause and subject to the written approval of the district program office.

       * * *

       (e) The Department may in accordance with Chapter 120, F.S., . . . suspend or revoke a license at any time that an applicant or foster parent fails to maintain minimum standards . . ..

       * * *

    3. Foster Parent Standards. Any exceptions to the following policies and procedures shall be for good cause and subject to the written approval of the district program office.

    * * *

    (g) Foster parent applicants shall agree to work within the policies and procedures established by the Department, and accept supervision by a foster care counselor.

    
    

    None of the other multiple rule requirements of foster care licensure appear to be involved in this case. Of the quoted rule provisions, only paragraphs (1)(c) and (3)(g) seem to support the charges made in this case.

    
    

27. The evidence proved that the Abbotts were guilty of a negligent act materially affecting the health or safety of Andrea (and, due to contagion, other children in the home) in connection with their failure to fill the antibiotic prescription for Andrea, a violation of Section 409.175(8)1. However, HRS staff participated in this negligence, and the Abbotts' conduct is partially excused by their reliance on HRS. HRS was involved in the delay in

    processing the necessary paperwork for Medicaid authorization. In addition, HRS knew, or should have known, that administration of the antibiotic was being delayed, and the Abbotts were following the apparent HRS lead in assessing the materiality of the effect of the delay on the children's health and safety.

    
    

28. The evidence did not prove that the Abbotts did not "agree to work within the policies and procedures established by the Department" or that they did not "accept supervision by a foster care counselor." But by the end of Andrea's stay with them, the Abbotts were not "being supportive of the efforts outlined in the Agreement or Plan," a violation of F.A.C. Rule 10M-6.005(1)(c). Essentially, by the end, they disagreed with HRS on reunification and on many other things. But, despite their disagreements, the Abbotts made all scheduled visitation appointments, ultimately accepted the HRS determination, and had Andrea ready for reunification at the appointed time.

    
    

29. In assessing the appropriate disposition in this case, it should be noted that there can exist an inherent tension between the rule provisions which generally require a foster parent to go along with the HRS-sanctioned plan for the foster child, and F.A.C. Rule 10M-6.005(1)(e), which generally would require the foster parent to make the HRS case counselor aware of perceived problems in the HRS-sanctioned plan. In its essence, in this case, HRS is engaged in

    drawing the line between appropriate involvement by the foster parent in the decisions affecting the welfare of the ward, as required by F.A.C. Rule 10M- 6.005(1)(c), on the one hand, and inappropriate over-attachment to the child and over-involvement in those decisions, on the other hand. The process of line- drawing revealed by the evidence in this case is subjective in nature. One HRS administrator's effective foster parent may be another's "troublemaker." Care must be taken to avoid a misuse of the process as a crass means of eliminating administrative "headaches." In this case, the Abbott's crossed the line, but only at the very end of their term of foster care for Andrea. And while they ceased to be supportive of HRS, they did not fight HRS once final decisions had been made.

    
    

30. Finally, it should be noted that some of the alleged grounds for suspension or revocation were rejected upon the absence of any evidence on which findings of fact could be based. Those grounds were supported only by hearsay that would not have been admissible over objection in a civil action. See Section 120.58(1)(a), Fla. Stat. (1991). The Recommended Order might be different had all the grounds been proven.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order suspending the foster care license of Larry and Kathleen Abbott for 90 days. 9/

RECOMMENDED this 5th day of March, 1992, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 5th day of March, 1992.

ENDNOTES

1/ The licensees submitted a letter containing unnumbered paragraphs, some of which may be construed to contain proposed findings of fact.

2/ See Section 120.58(1)(a), Fla. Stat. (1991).

3/ HRS asserted in this case that Mrs. Abbott took it upon herself to discuss with the day care director issues about day care, as well as the mother's care of her other two children. But there was no evidence upon which such findings could be made. See the immediately preceding footnote.

4/ The evidence is confused as to when this incident occurred. Notwithstanding these findings to the contrary, there is some evidence to suggest that there

were two incidents, i.e., both this April 5 incident and a similar incident on or about April 10, 1991.

5/ The evidence is not clear whether the doctor prescribed an antibiotic at this time.

6/ Part of HRS' accusation that the Abbotts failed "to present a positive image and demonstrate respect for the child's own family" and "openly criticized [the] child's biological family" stems from a misunderstanding that Mrs. Abbott was accusing the man of being "filthy," i.e., unclean as well as immoral. Actually, Mrs. Abbott was pointing to the condition of the man's hands as part of the evidence for her "case" that the child could be the subject of sexual abuse.

7/ Again, the evidence is not clear on the dates of these meetings and the sequence of events.

8/ HRS accuses the Abbotts of intentionally not filling the antibiotic prescription in order to prove their belief that the child was being sexually abused, by proving that the condition would clear without the prescription.

But, if that were their motivation, they probably would not have been using the Desitin to try to clear the problem. The evidence as a whole did not prove HRS' accusation.

9/ Since their license expired on October 25, 1991, this recommendation would contemplate their ability to apply to renew their license at this time.

10/ The licensees submitted a letter containing unnumbered paragraphs, some of which may be construed to contain proposed findings of fact. For purposes of ruling on any proposed findings of fact, consecutive numbers are attributed to the unnumbered paragraphs.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7361

To comply with the requirements of Section 120.59(2), Fla. Stat. (1989), the following rulings are made on the licensees' proposed findings of fact10/ (HRS did not file any):

1. Accepted but subordinate and unnecessary.

2. Accepted and incorporated.

3. Rejected as contrary to facts found and to the greater weight of the evidence that HRS is "displeased" that the licensees "have had concerns for the safety of this child at all." (Emphasis added.) HRS' concerns were with the extent to which the licensees displayed concerns. Otherwise, accepted and incorporated.

4.-5. Accepted and incorporated. (HRS presented no evidence on which a finding of fact could be based as to what Mrs. Abbott said.)

1. Accepted and incorporated to the extent not subordinate to facts found or unnecessary.

2. Accepted and incorporated to the extent not subordinate or unnecessary. (However, it should be noted that the attempted supplemental evidence was presented after the close of the evidence, too late for consideration as part of the evidence.)

3. First two sentences, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as argument that the oversights were "gross," but otherwise accepted and incorporated to the extent not subordinate or unnecessary.

4. Accepted but subordinate and unnecessary.

5. Accepted and incorporated to the extent not subordinate or unnecessary.

6. Rejected as contrary to facts found and to the greater weight of the evidence and as argument.

7. Irrelevant.

COPIES FURNISHED:

George W. Butler, Jr., Esquire Screening Attorney

District 5 Legal Office Department of Health and

Rehabilitative Services 701 94th Avenue North

St. Petersburg, Florida 33702

Larry Kathleen Abbott

209 Westwood Terrace North St. Petersburg, Florida 33710

R. S. Power, Esquire Assistant General Counsel Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 91-007361

Orders for Case No: 91-007361