STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4512

)

NETTIE WILKES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on February 22, 1995 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Laurie A. Lashomb, Esquire

Department of Health and Rehabilitative Services

District 7 Legal Office

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

For Respondent: Jane Carey, Esquire

905 West Colonial Drive Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent's license to operate a foster home for dependent children should be suspended or revoked for lack of cooperation, and violation of the Petitioner's discipline policy, and licensing standards as outlined in the Administrative Complaint.

PRELIMINARY STATEMENT

Respondent operates a foster home and holds a family foster home license.

Petitioner filed an Administrative Complaint, dated June 6, 1994, seeking to revoke Respondent's license. Respondent made a timely request for a formal administrative hearing on June 29, 1994. This matter was referred to the Division of Administrative Hearings on August 16, 1994, and was set for hearing. After several continuances requested by the parties, the hearing was held. Each party called four witnesses. Petitioner offered one document which was admitted in evidence. A transcript was filed on March 21, 1995. Petitioner filed its proposed findings of fact on April 6, 1995. Respondent requested additional time to obtain the transcript and file a proposed order. As of the date of this

order, Respondent has not filed a proposed order. My specific rulings on Petitioner's proposals are set forth in the Appendix attached hereto. Based on the evidence adduced at the hearing, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent is an elderly woman who has operated a foster home since October 1989, at 7018 Ironwood Drive, Orlando, Orange County, Florida.

   
   

2. Respondent applied for and was granted a foster home license in October, 1989. Foster home licenses are valid for one year and must be renewed annually.

   
   

3. Respondent has annually renewed her license and presently holds license number 1093-11, issued October 18, 1993.

   
   

4. In a licensing visit on April 6, 1990 Respondent admitted that she had been using some physical discipline with the children. She stated that she had been tapping the children's hands and had threatened one of the kids with a comb.

   
   

5. Respondent was counselled by the Petitioner's licensing representative in regard to the agency's disciplinary guidelines.

   
   

6. As a follow-up to the counseling session, a letter was sent to Respondent, dated April 6, 1990, by Licensing Representative Barbara Wavell, which advised Respondent that physically disciplining a foster child in her home was a violation of HRS policy.

   
   

7. Respondent received the letter, and although she now believes that it contains misstatements of facts, she did not dispute its contents at the time.

   
   

8. Respondent was made aware of the discipline policy of HRS on various occasions and during the required foster parent training, and agreed to abide by it.

   
   

9. On April 10, 1992, Respondent expressed to Ms. Wavell that she believed "schools should be allowed to spank" and that "children need discipline and there is nothing wrong with appropriate spanking".

   
   

10. In late 1993, Respondent hit at least one foster child who was placed in her home, because the child wet the bed.

    
    

11. During 1993 and early 1994, Respondent allowed older foster children to discipline younger foster children with corporal punishment.

    
    

12. On occasion, Respondent has restricted children from having access to their family members. Respondent has made derogatory remarks about some of the foster children's biological family members while in the presence of the foster children.

    
    

13. Respondent had problems working with some of the children's caseworkers, most notably Jodi Peterson, on various occasions. Respondent expressed her concern that the caseworker visited her home too much, and she preferred that Ms. Peterson not have much contact with her foster children. Respondent felt that she should be included in the conversations between the

    children and their foster care counselors and would get upset that she was not included in these discussions. Respondent did not recognize the need for the children to have privacy and that it impinged on their right to have a proper relationship with their counselors.

    
    

14. Respondent had on-going communications problems with the caseworkers. Respondent was specifically instructed concerning monetary allowances for the children, and the fact that the money given to Respondent was to be used for the children for clothing and incidentals.

    
    

15. Respondent had difficulty accepting the fact that the children were entitled to monetary allowances to be used for clothing and incidentals. Respondent refused to allow the foster children placed in her home to participate in school activities, she refused to give them their allowance money to pay for school field trips.

    
    

16. Respondent did not allow the foster children to have friends visit or to go places for fun. She encouraged them to stay home and watch television in their free time.

    
    

17. Respondent on occasion made derogatory marks to some of the foster children placed in her home.

    
    

18. Respondent did not show appropriate concern for the safety of a four- year-old foster child who was sharing a bedroom with two twelve-year-old foster children. Respondent was aware that they were hitting her, however, Respondent did not remove the child from that bedroom, although she had three empty bedrooms in the home.

    
    

19. Although many visits have been made to the Respondent's home in an attempt to work with her to assist her in bringing the quality of care in her home up to an acceptable level, Respondent has failed to comply.

    
    

20. On April 5, 1994, Petitioner's representative visited the Respondent to discuss the reasons that the Petitioner would be seeking a revocation of her license to operate a foster home.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

22. Section 409.175, Florida Statutes (1993) governs the licensing of family foster homes. The purpose of this section is to protect the health, safety, and well-being of all children in the state who are cared for by family foster homes by providing for licensing requirements for such homes and providing procedures for adherence to the requirements. Said section reads in pertinent part:

    
    

    . . .

    (8)(a) The department may deny, suspend, or revoke a license.

    (b) Any of the following actions by a home or agency or its personnel is a ground for denial, suspension, or revocation of a license:

    1. an intentional or negligent act materially affecting the health or safety of children in

       the home.

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

    
    

23. A foster home must meet and maintain the minimum standards as outlined in Chapter 10M-6, Florida Administrative Code to receive and retain a license to operate a family foster home.

    
    

24. Pursuant to Section 409.175, Florida Statutes, the Petitioner adopted licensing rules for family foster homes which set a standard level of compliance, below which a home cannot operate. Rule 10M-6.012, Florida Administrative Code. Respondent's home failed to meet and maintain the necessary standards of compliance.

    
    

25. Pursuant to Section 409.175(8)(b)(2), Florida Statutes, a violation of any of the provisions of Section 409.175, or any rules promulgated pursuant to said section, is grounds for the suspension or revocation of a license. Respondent has violated numerous sections of Chapter 10M-6 and various subsections of Section 409.175.

    
    

26. Respondent has violated the discipline policy several times, even after repeated warnings by the Department that continued violations could result in the revocation of her license.

    
    

27. The rights of foster children placed in Respondent's home have been continuously violated over the years based on Rule 10M-6.128, which provides for the right of foster children to be placed in a setting which best meets their needs and to have a healthy lifestyle and maintenance of optimal physical and emotional well-being.

    
    

28. In the Respondent's foster home, Respondent has degraded the children and their biological families while in their presence, attempted to limit the children's contact with their counselors; attempted to limit the children's on- going contact with their biological families; failed to remove a four-year-old child from a bedroom with older children when she felt that the child's safety was at risk; and Respondent threatened to use corporal punishment on the children; she then delegated the task to the older children.

    
    

29. Rule 10M-6.024(1)(b)(5), Florida Administrative Code, prohibits the use of corporal punishment with foster children in a licensed family foster home. Respondent's use of corporal punishment in her home and her request of older foster children to spank younger foster children is in clear violation of the foster care licensing standards. Respondent's refusal to allow foster children to have contact with their family members, and her continued verbal abuse of the foster children as well as her derogation of their biological family members are violations of Rules 10M-6.024(1)(a)(5)(d) & (k), 10M- 6.024(2)(a), (c) & (e) and 10M-6.130(5)(e). Rule 10M-6.024(1)(c) & (2)(f) require foster parents to work cooperatively with a foster child's counselor. Respondent refused to allow children to speak with their counselors and gave counselors a hard time when they visited or called too often. Respondent's failure to work cooperatively with foster care counselors violates these rules.

    
    

30. Although licensing representatives have made various attempts to work with Respondent to bring the level of care in her home up to an acceptable

    level, the efforts have failed, and Respondent has continued to violate the standards set forth in Chapter 10M-6, Florida Administrative Code.

    
    

31. Rule 10M-6.019, Florida Administrative Code requires the Department to send a representative to the home of a foster parent when they intend to seek a revocation of the foster care license to discuss the reasons with the parent. Petitioner's licensing representative visited the home on April 5, 1994 in compliance with this rule.

    
    

32. Based on the standards set forth in Chapter 10M-6 and the laws set forth in Section 409.175, Florida Statutes, Respondent's home does not meet the minimum level of compliance and her license should be revoked. Further, placement of children in the home would endanger the physical and emotional well-being of the children.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby

RECOMMENDED that a final order be entered revoking Respondent's license to operate a foster home.

DONE and ENTERED this 18th day of May, 1995, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 18th day of May, 1995.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed findings of fact submitted by Petitioner.

Accepted in substance: paragraphs 1 (in part), 2, 4 (in part), 7 (in

part), 8 (in part), 10 (in part), 11 (in part), 13 (in part), 14, 15, 16 (in

part), 18, 20, 21, 22, 25, 26, 28 (in part), 29 (in part), 30 (in part), 31, 33,

34.

Rejected as not supported by clear and convincing evidence: 1 (in part), 10 (in part), 19, 24.

Rejected as subsumed, irrelevant or immaterial: paragraphs 3, 6 (in part), 7 (in part), 8 (in part), 9, 11 (in part), 12, 13 (in part), 16 (in part), 17,

23, 27, 28 (in part), 29 (in part), 30 (in part), 32.

Rejected as a conclusion of law: paragraph 5

Proposed findings of fact submitted by Respondent.

Respondent did not submit proposed findings of fact.

COPIES FURNISHED:

Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services District 7 Legal Office

400 W. Robinson Street, Suite S-827 Orlando, Florida 32801

Jane Carey, Esquire 905 W. Colonial Drive

Orlando, Florida 32801

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Bouelvard

Tallahassee, Florida 32399-0700

Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Bouelvard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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: 94-004512

Orders for Case No: 94-004512