STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELMER and VIVIAN GRIFFIN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6584

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Naples, Florida, on March 28, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Elmer and Vivian Griffin, pro se

Post Office Box 2544

Immokalee, Florida 33934

For Respondent: Attorney Anthony N. DeLuccia, Jr.

District 8 Legal Office Department of Health and

Rehabilitative Services Post Office Box 06085

Ft. Myers, Florida 33906 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent may refuse to renew the foster care license of Petitioners.

PRELIMINARY STATEMENT

By letter dated August 3, 1993, Respondent informed Petitioners that it was denying their application to relicense their home for foster care. The letter bases the action on the use of corporal punishment, inadequate parenting skills, an insufficient relationship between Mrs. Griffin and the foster children, and an inability of Mr. and Mrs. Griffin to work cooperatively for the benefit of the children.

By letter dated August 26, 1993, Mr. and Mrs. Griffin requested a formal hearing.

At the beginning of the hearing, Petitioners filed a motion for continuance, which was denied. The hearing officer ruled that the burden of proof was borne by Respondent because it was in effect attempting to revoke the foster care license of Petitioners.

Respondent called seven witnesses and offered into evidence four exhibits, of which three were admitted. Petitioners called no witnesses and offered into evidence no exhibits.

Neither party ordered a transcript. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. Petitioners are licensed by Respondent to provide foster care to children in Petitioners' home.

   
   

2. Substantially prior to the incidents in question, Petitioners received written materials from Respondent confirming that the foster children at all times remain under the supervision and control of Respondent and that Respondent's discipline policy "[p]rohibits any form of corporal punishment

   ...." On at least two occasions during the latter half of 1992, a representative of Respondent reminded Petitioners of the policy against corporal punishment.

   
   

3. Despite numerous reminders of Respondent's policy against corporal punishment in a foster care setting, on January 29, 1993, Vivian Griffin spanked a 2 and 1/2 year old boy who was in their foster care. He had soiled his diapers during a visit by Mr. and Mrs. Griffin to a commercial lender. As Mrs. Griffin removed him from the office, she threatened, "I'm going to take you outside and I'm going to take your pants down." She took the toddler to her van where she struck the boy at least five to ten times with her bare hand in the area of his buttocks.

   
   

4. The incident drew the attention of two office workers, one of whom went out to the van and intervened. When asked by the office worker if she could help, Mrs. Griffin responded, "He shit in his pants."

   
   

5. Petitioners' parenting skills are deficient. Mrs. Griffin in particular has a high frustration level with the young children who have been placed in their home. During one home visit by a representative of Respondent, Mrs. Griffin followed around a two year old who was exhibiting normally inquisitive behavior in her home. Rather than remove objects that the toddler should not have touched, Mrs. Griffin hovered over the child, inappropriately threatening at one point a two-minute timeout if the behavior persisted.

   
   

6. Both Petitioners have displayed a strong lack of

   affection, considerable nervousness, and much agitation with the foster children who have been placed with Petitioners. At the same time, Mrs. Griffin constantly resisted help offered by Respondent's representatives and instead complained about these and other persons available to help her.

   
   

7. Respondent has offered Petitioners free day care, parenting classes, and individual counselling. But Mrs. Griffin refused to go to the parenting classes or take the children to day care. She reluctantly attended one or two sessions of individual counseling, but soon quit going.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

9. Rule 10M-6.024(1)(b)5.f provides that foster care parents "must not use corporal punishment of any kind" on foster children.

   
   

10. Rule 10M-6.024(1)(b)5.c.I-V identifies "positive methods of discipline" that should be used by foster care parents. These are reinforcing acceptable behavior, expressing verbal disappointment at poor behavior from the child, removing privileges for bad behavior, grounding the child for bad behavior, and redirecting the child's activity.

    
    

11. Rule 10M-6.024(1)(a)1 and 2 requires the foster parents to give "love, acceptance, and care to a child without expecting a demonstration of appreciation from the child" and to give the child "opportunities for normal growth and development."

    
    

12. Rule 10M-6.024(1)(c)(1) provides that foster care parents are expected to work cooperatively with Respondent's counselor as a member of a treatment team in seeking counseling, participating in consultation, and preparing and implementing the performance agreement or permanent placement plan for each child.

    
    

13. Respondent must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

14. Respondent has proved by clear and convincing evidence that Mrs. Griffin used corporal punishment against a foster child and that Mrs. Griffin is unable consistently to give love, acceptance, and care to a child without expecting reciprocation.

    
    

15. Respondent proved by clear and convincing evidence that both Petitioners demonstrated inadequate parenting skills with respect to identifying behavior requiring discipline and then fashioning positive methods of discipline to deal effectively with such behavior. Respondent proved by clear and convincing evidence that Petitioners declined to take advantage of available and much-needed assistance, including counselling.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying the renewal of a foster care license to Petitioners.

ENTERED on April 20, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on April 20, 1994.

APPENDIX

Rulings on Petitioner's Proposed Findings

1. rejected as not finding of fact.

2. rejected as recitation of evidence and unsupported by the appropriate weight of the evidence.

3-5. rejected as recitation of evidence. Rulings on Respondent's Proposed Findings 1-6. adopted or adopted in substance.

COPIES FURNISHED:

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Attorney Kelly A. Lee

P.O. Box 7946

Naples, FL 33941-7946

Elmer and Vivian Griffin

P.O. Box 2544 Immokalee, FL 33934

Attorney Anthony N. DeLuccia, Jr. District 8 Legal Office

Department of Health and Rehabilitative Services

P.O. Box 06085

Ft. Myers, FL 33906

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: 93-006584

Orders for Case No: 93-006584