STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDA ALI, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3723

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 17, 1993, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Freda Ali, pro se

2511 Northwest 16th Court

Fort Lauderdale, Florida 33311

For Respondent: Kenneth M. Malnick, Esquire

Department of Health and Rehabilitative Services

201 West Broward Boulevard, Suite 513 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether Petitioner's application for a family foster home license should be granted by the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department")?

PRELIMINARY STATEMENT

By letter dated May 27, 1993, the Department advised Petitioner that a preliminary determination had been made to deny her request for permission "to re-open [her] foster home." The letter contained the following explanation for the Department's proposed action:

During the course of 1991, HRS investigators determined that your cousin, Sharon Walker, was being utilized as a care giver (baby sitter). Ms. Walker had not been screened as a caretaker. The requirements that other adults and baby-sitters must undergo screening had been related to you and a signed statement to this [e]ffect had been

received. Also Ms. Walker was baby-sitting the children in her home overnight and on

weekends, which is against licensing standards.

The outcome of this 1991 investigation was that Ms. Walker was confirmed as a perpetrator, since she admitted that she physically disciplined children in your care, and the children showed evidence of inflicted injury. You also admitted to spanking the children with a "switch" describing a belt like instrument made of a nylon type fabric. Chapter 10M-6.024 of the Florida Administrative Code prohibits the use of corporal punishment of any kind.

On June 14, 1993, Petitioner filed with the Department a written request for a formal administrative hearing on the Department's proposed action to deny her application for licensure. The matter was referred to the Division of Administrative Hearings (hereinafter referred to as the "Division") on July 6, 1993, for the assignment of a Division hearing officer to conduct the formal hearing Petitioner had requested.

At the formal hearing, which was held on December 17, 1993, 1/ a total of five witnesses testified: F.C., one of the foster children who formerly lived in Petitioner's home under her care; Jean Swaby, an advanced registered nurse practitioner who works at the Broward County Sexual Assault Treatment Center; Mary Carter Thomas, a day care worker employed at the Jack & Jill Nursery; Beverly Johnson Stevens, a child protective services investigator with the Department; and Respondent. In addition to the testimony of these five witnesses, a total of 16 exhibits (Petitioner's Exhibits 1 and 2 and Respondent's Exhibits 1 through 14) were offered and received into evidence.

At the close of the evidentiary portion of the hearing on December 17, 1993, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 15 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the hearing transcript on January 28, 1994. On January 31, 1994, the Department filed a proposed recommended order containing proposed findings of fact and conclusions of law. These proposed findings of fact and conclusions of law have been carefully considered by the Hearing Officer. The proposed findings of fact are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Petitioner previously served as a foster parent from late 1990 until November of the following year.

   
   

2. The foster children entrusted to her care during this period of time were four preadolescent sisters, Z.C., A.C., F.C. and W.C., who are now five, seven, nine, and eleven years of age, respectively.

3. Before assuming her responsibilities as a foster parent, Petitioner was provided with, among other things, two acknowledgment forms, which she subsequently signed and returned to the Department.

   
   

4. One of the forms related to screening requirements and provided as follows:

   
   

   I, (We) , foster parent(s), understand that anyone who resides in my foster home and is over the age of 18, must be fully screened according to federal requirements. I, (We), understand that screening requirements also apply to anyone I, (We) might use as a baby-sitter. I understand that failure to have applicable persons screened may result in the revocation of my foster home license.

   
   

   I, (We) further understand that any changes in my (our) household composition must be reported to HRS.

   Screening Requirements Fingerprinting

   3 personal references Employer reference Consent form

   Police clearance

   Abuse Registry clearance Affidavit of Good Moral Character Discipline Statement

   
   

   
   

   FOSTER MOTHER DATE

   
   

   
   

   FOSTER FATHER DATE

   
   

5. The other form concerned disciplinary measures. It provided as follows:

   
   

   FOSTER PARENT(S):

   
   

   You are aware that for some time, Health and Rehabilitative Services has discouraged the use of physical punishment, including spanking, for children in foster care.

   
   

   Now, however, we have an Administrative Rule statewide which prohibits foster parents from using corporal punishment on foster children.

   
   

   The section of administrative Rule 10M-6; which deals with discipline, is reproduced in the following paragraph:

   "Licensing and relicensing procedure developed by the Department shall include the presentation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate nonabusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through which the foster child develops self- control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behaviors. The purpose of discipline is education and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal controls. Foster Parents are expected to define rules which establish limits and types of acceptable behavior. These rules must be clearly explained to each child and applied equally to all children. Prohibited disciplinary practices include group punishments for misbehavior of individuals; withholding of meals, mail or family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading punishment which subjects the child to ridicule; being placed in a locked room;

   and delegation of authority for punishment to other children or persons not known to the child. The use of isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such periods of isolation shall be observed and supervised by the foster parent to ensure the safety of the child."

   
   

   If you have problems with this new rule, please discuss this with your licensing counselor who will be able to help you work out alternative disciplinary techniques for each child, according to his/her needs.

   
   

   My signature acknowledges that I have read this statement, that I understand the content, and agree to abide by it.

   
   

   
   

   FOSTER PARENT DATE

   
   

   
   

   FOSTER PARENT DATE

6. During a ten-week training course that she attended prior to becoming a foster parent, Petitioner was further advised of the Department's prohibition against the use of corporal punishment as a means of disciplining foster children.

   
   

7. Notwithstanding her awareness of this prohibition, on various occasions during the period of time that she was providing foster care, Petitioner hit her foster children with a belt-like instrument to punish them for their misconduct.

   
   

8. On a regular basis, Petitioner had her cousin, Sharon Walker, baby-sit for the children.

   
   

9. Walker was not licensed to provide foster care.

   
   

10. Furthermore, Walker had not been screened by the Department to determine her fitness to serve as a caretaker for foster children, and Petitioner made no effort to initiate the screening process.

    
    

11. Walker was not compensated for her baby-sitting services, although Petitioner did provide her with food and money for the children.

    
    

12. Walker baby-sat for the children approximately 100 hours per month.

    
    

13. There were times that she had them under her care and supervision for an entire weekend.

    
    

14. One such weekend was the weekend of November 16 and 17, 1991.

    
    

15. On Tuesday, November 19, 1991, the Department received a report from the nursery school that Z.C. attended that Z.C. had come to school with "a number of unexplained injuries this year," including the "bruises on her leg and on her buttocks" that were observed by the reporter that day. The reporter indicated that she suspected that Z.C. was "being abused."

    
    

16. Upon receiving the report, the Department removed Z.C. and her three sisters from Petitioner's home and commenced an investigation of the matter.

    
    

17. Beverly Johnson Stevens, a child protective services investigator with the Department, was assigned the investigation.

    
    

18. As part of her investigation, Stevens made arrangements for Z.C. and her sisters to be given complete physical examinations at the Broward County Sexual Assault Center (hereinafter referred to as the "Center").

    
    

19. Z.C. and A.C. were examined at the Center on November 20, 1991. Their older sisters were examined at the Center six days later.

    
    

20. Z.C.'s and A.C.'s examinations revealed that they had bruises and "fresh" linear marks (i.e., linear marks no more than five days old) on their bodies.

    
    

21. F.C. and W.C., it was discovered, had linear marks on their bodies as well, but these marks were not "fresh."

    
    

22. Based upon the results of the examinations, as well as the interviews she had conducted with the four children, Stevens determined that the case should be closed as "proposed confirmed."

23. Z.C., A.C., F.C. and W.C. were named as the alleged victims in Stevens' "proposed confirmed" report of abuse.

    
    

24. Petitioner and Walker were named as the alleged perpetrators in the report.

    
    

25. Petitioner requested an administrative hearing on the proposed classification of the report. The case was thereafter referred to the Division of Administrative Hearings and docketed as DOAH Case No. 92-5694C.

    
    

26. On January 21, 1993, before any administrative hearing had been held, the Department and Petitioner entered into a settlement agreement, which provided as follows:

    
    

    COMES NOW, the Petitioner, the Department of Health and Rehabilitative Services, by and through its undersigned counsel, WILLIE LAWSON, and the Respondent F.D.A., jointly stipulate to the following final settlement of the instant cause:

    1. Respondent's child abuse report shall be amended to read "Closed Without Classification." The Respondent's child

       abuse report of "proposed confirmed," shall be deleted and the Respondent, F.D.A., shall be removed from the child abuse registry.

    2. The Respondent, F.D.A., individually and on behalf of the minor children, hereby releases the Department of Health and Rehabilitative Services from any claims, demands, actions, judgments and executions which F.D.A. ever had or now has against the Department of Health and Rehabilitative Services arising out of the events which gave rise to this cause of action or any event prior to this date.

       
       

27. In accordance with the settlement agreement, the Department filed the following Notice of Dismissal in DOAH Case No. 92-5694C:

    
    

    The Department of Health and Rehabilitative Services hereby gives notice of its decision to abandon the prosecution of this cause.

    The report of abuse and/or neglect is closed without classification.

    
    

    The basis for this dismissal is that a settlement has resolved all disputed issues.

    
    

28. Following the Department's reclassification of the report, Petitioner made the request, which is the subject of the instant case, that she be allowed "to re-open [her] foster home."

    CONCLUSIONS OF LAW

    
    

29. With certain exceptions not applicable to the instant case, "a . . . family foster home . . . shall not receive a child for continuing full-time care or custody unless such . . . home . . . has first procured a license from the [D]epartment to provide such care." Section 409.175(3)(a), Fla. Stat.

    
    

30. The Department may deny an application for a family foster home license, or it may suspend or revoke a family foster home license it has already issued, if the applicant or licensee has committed "[a] violation of [Section 409.175, Florida Statutes] or of the licensing rules promulgated pursuant to this section." Section 409.175(8)(b), Fla. Stat.

    
    

31. Under Section 409.175, Florida Statutes, family foster home licensees must obtain a complete set of fingerprints from their previously unscreened "personnel" within five working days after such "personnel" start working for them and they then must submit the fingerprints, within 48 hours, to the Department, which, upon receiving the fingerprints, begins the screening process to determine if the "personnel" meet the requirements for good moral character imposed by the statute.

    
    

32. The term "personnel," as it is used in Section 409.175, Florida Statutes, includes volunteers who assist the licensee in caring for the licensee's foster children for 40 or more hours a month. Section 409.175(2)(h), Fla. Stat.

    
    

33. Walker provided such volunteer assistance to Petitioner during the period that Petitioner was Z.C.'s, A.C.'s, F.C.'s and W.C.'s foster mother by baby-sitting for the children. Although Walker had never before been screened by the Department, at no time did Petitioner take any action to have the Department conduct such a screening and she continued to allow Walker to baby- sit for the children, despite Walker's unscreened status. In so doing, Petitioner committed a violation of Section 409.175, Florida Statutes.

    
    

34. Among the "licensing rules promulgated pursuant to [Section 409.175, Florida Statutes]," violation of which is a ground for denial, suspension, or revocation of a family foster home license, is that prohibiting foster parents from using physical force to punish their foster children.

    
    

35. Petitioner knew of this rule, yet on various occasions while Z.C., A.C., F.C. and W.C. were in her care, she disciplined them by striking them with a belt-like instrument in violation of the rule.

    
    

36. In view of the foregoing violations that Petitioner committed during the period of her initial licensure, and in the absence of assurances that there will be no violations committed by her in the future if she is granted another family foster home license, her application for such a license should be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying Petitioner's application for a license to operate a family foster home.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of February, 1994.

STUART M. LERNER

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 15th day of February, 1994.

ENDNOTES

1/ The final hearing was originally scheduled for November 19, 1993, but at the request of the Department it was continued and rescheduled for December 17, 1993.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-3723

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its post-hearing submittal:

1-3. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

4-9. Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact.

10-11. Rejected as findings of fact because they are more in the nature of descriptions of documentary evidence received into evidence than findings of fact.

12-13. Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact.

1. Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact.

3. Rejected as a finding of fact because it is more in the nature of argument regarding the credibility of testimony given by Petitioner than a finding of fact.

4. Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact.

COPIES FURNISHED:

Freda Ali

5901 Northwest 12th Court Sunrise, Florida 33313

Freda Ali

2511 N.W. 16th Court

Fort Lauderdale, Florida 33311

Kenneth M. Malnick, Esquire Department of Health and

Rehabilitative Services

201 West Broward Boulevard Suite 513

Fort Lauderdale, Florida 33301

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, 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 of time 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: 93-003723

Orders for Case No: 93-003723