STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6751

) ROBERT and MELODY CHINNICI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer James E. Bradwell, held a formal hearing in this case on April 20, 1993, in Polk City, Florida.

APPEARANCES

For Petitioner: Raymond R. Deckert, Esquire

Department of Health and Rehabilitative Services

District Six Legal Office

W. T. Edwards Facility

4000 West Dr. Martin Luther King Jr. Boulevard

Tampa, Florida 33614

For Respondents: Robert and Melody Chinnici, pro se

5244 De Milley Road

Polk City, Florida 33868 STATEMENT OF THE ISSUE

The issue is whether Respondents' license to operate a foster home should be revoked for alleged violation of Petitioner's discipline policy.

PRELIMINARY STATEMENT

Respondents, Robert and Melody Chinnici, are the subjects of an administrative complaint filed by Petitioner on September 11, 1992, alleging that Respondents violated Petitioner's disciplinary policy respecting their care of foster children in their home. Respondents disputed those allegations and requested a formal hearing to contest them. Following responses from the parties, on January 20, 1993, the matter was set for hearing for April 20, 1993, and was heard as scheduled.

Petitioner presented the testimony of Ana Cameron, a foster care licensing counselor, Jim Ernst, Petitioner's child protective investigator and institutional abuse specialist; Darcy Dennis, a foster/shelter parent; Jackie

Martin, formerly a shelter care parent; Tonya Wilson, a foster child who formerly lived in Respondents' home; and Margaret McMahan, Petitioner's supervisor for foster care licensing in Polk County, Florida.

Respondents testified on their own behalf and presented the testimony of Mary Hunt, an employee of Petitioner's Polk County Health Unit; Lorraine Dickerson; Carolyn Witupeck; and Christopher Chinnici, Respondents' natural son.

Petitioner introduced one exhibit, a copy of its discipline policy, which was received in evidence without objection.

The parties filed proposed recommended orders which were considered in preparation of this recommended order. Proposed findings which are not incorporated herein are the subject of specific rulings in an appendix.

Respondents' proposed recommended order is in the nature of argument and commentary on the evidence and no specific rulings are made on such arguments and commentary.

FINDINGS OF FACT

Based on my observation of the witnesses, their demeanor while testifying and the entire record complied herein, the following relevant facts are found.

1. Respondents, Robert and Melody Chinnici, completed their foster care parent training program during September 16, 1991 (MAPP), and were thereafter licensed as foster care parents in October 1991.

   
   

2. The MAPP training included Petitioner's discipline policy which is in the form of a written statement that was given to and acknowledged by Respondents.

   
   

3. During times material, Respondents were entrusted to care for foster children Tonya Wilson, a 13-year-old, who resided with Respondents from approximately October 1991 through May 1992, and Jonathan, who was approximately

   10 years of age. During this time frame, Respondents' natural son, Christopher Chinnici, also resided with them.

   
   

4. During times material, Respondents used a form of "time out" to discipline the foster children when they were disruptive in church. The time out procedure utilized was one whereby the disruptive child would stand and face the wall for periods of five to fifteen minutes. When "time out" was imposed, the church services were over and most of the parishoners had left the parish.

   
   

5. On at least one occasion, Respondent, Melody Chinnici, discussed with a foster parent a means of circumventing Petitioner's disciplinary policy respecting the pulling of foster children's hair. There was no evidence that Respondents in fact circumvented HRS' policy.

   
   

6. Respondents attempted to serve meals to their foster children in an orderly fashion. During the course of serving meals, there was no evidence that Respondents withheld or otherwise utilized food as a means to discipline foster children in their care.

   
   

7. Likewise, Respondent Melody Chinnici did not administer corporal punishment to foster children in her bedroom out of the view of other children.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to this action pursuant to Chapter 120, Florida Statutes.

   
   

9. The Department of Health and Rehabilitative Services is the licensing agency for family foster homes pursuant to the authority of Chapter 409, Florida Statutes.

   
   

10. Petitioner has the burden of establishing that Respondents violated, in particular, Section 409.175, Florida Statutes, and rules and regulations promulgated pursuant thereto, and specifically Chapter 10M-6, Florida Administrative Code.

    
    

11. Petitioner failed to establish that Respondents Robert and Melody Chinnici violated Petitioner's policy respecting conformity to the kindness standard; unacceptable methods of discipline or humiliation as a form of disciplinary action; withdrew food as a form of discipline or punishment; or otherwise disciplined foster children by administering corporal punishment.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner enter a final order rescinding its proposed revocation of Respondents' foster care license and issue said licence forthwith assuming Respondents comply with other relevant criteria for the reissuance of their foster care license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of July 1993.

JAMES E. BRADWELL

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 26th day of July, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6751

Ruling on Petitioner's proposed recommended order.

Paragraph 3, adopted as modified, paragraph 4, recommended order. Paragraph 4, rejected, contrary to the greater weight of evidence,

paragraph 5, recommended order.

Paragraph 5, adopted as modified, paragraph 4, recommended order. Paragraphs 6 and 7 rejected, contrary to the greater weight of evidence,

paragraphs 6 & 7, recommended order.

COPIES FURNISHED:

Raymond R. Deckert, Esquire Department of Health and

Rehabilitative Services District Six Legal Office

W. T. Edwards Facility

4000 West Dr. Martin Luther King Jr., Blvd. Tampa, Florida 33614

Robert and Melody Chinnici, pro se 5244 De Milley Road

Polk City, Florida 33868

Robert Powell, 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 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 to 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: 92-006751

Orders for Case No: 92-006751