STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOAN HENRY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3042

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on August 24, 1995, in Miami, Florida, via video teleconference.

APPEARANCES

For Petitioner: Joan Henry, Pro Se

18601 Northwest 22nd Court Miami, Florida 33056

For Respondent: Collen Farnsworth

Assistant District Legal Counsel

401 Northwest 2nd Avenue, Suite N-104 Miami, Florida 33128

STATEMENT OF THE ISSUES

Whether Petitioner's application for a foster care license should be granted.

PRELIMINARY STATEMENT

By letters dated September 15, 1994 and January 10, 1995, Respondent, Department of Health and Rehabilitative Services (HRS), denied Petitioner, Joan Henry's (Ms. Henry), application for licensure as a foster parent, citing her failure to notify HRS of her departure from the country and the lack of supervision in the home. Ms. Henry requested an administrative hearing. On June 19, 1995, the case was forwarded to the Division of Administrative Hearings for assignment to a Hearing Officer.

At the final hearing, Ms. Henry testified in her own behalf. HRS presented the following witnesses: Shirley Stovell, Emanuel Olajide, Brenda Olivier, Rosalyn Jackson, and Jackie Hodge. Respondent's Exhibits 1-7 were admitted in evidence.

No transcript was filed. The parties agreed to file proposed recommended orders on or before September 13, 1995. Respondent filed its proposed

recommended order on September 12, 1995. Petitioner did not file a proposed recommended order. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Joan Henry (Ms. Henry), was licensed by Respondent, Department of Health and Rehabilitative Services (HRS), as a foster parent in 1992. She continued to be licensed until sometime in 1994. The foster home was officially closed September 19, 1994. She applied for relicensure as a foster parent, and her application was denied by HRS.

   
   

2. During the time relevant to this proceeding, Ms. Henry cared for five foster children, B.W., S.W., S.A.W., T.W., and T.B. Ms. Henry's adult daughter, Jiliane, lived with Ms. Henry during this time. Jiliane took care of the children while Ms. Henry worked during the day. HRS was aware of this arrangement.

   
   

3. On May 25, 1994, Ms. Henry signed an Agreement to Provide Substitute Care for Dependent Children for the five children in her care. Ms. Henry agreed to abide by the following provisions of the agreement.

   
   

   2. We are fully and directly responsible

   to the department for the care of the child.

   * * *

   6. We will not give the child into the care or physical custody of any other person(s), including the natural parent(s), without the consent of a representative of the department.

   * * *

   11. We will notify the department immediately of any change in our address, employment, living arrangements, family composition, or law enforcement involvement.

   * * *

   15. We will comply with all requirements for a licensed substitute care home as prescribed by the department.

   
   

4. In late June, 1994 or early July, 1994, Ms. Henry received a call that her mother's best friend had died in London, England. Ms. Henry went to London. Ms. Henry could not get in touch with an HRS representative and asked Jiliane to notify HRS that she had been called out of the country unexpectedly. Jiliane failed to notify HRS. Ms. Henry was in London for several weeks.

   
   

5. On July 5, 1994, HRS received a call that the Ms. Henry's children had been watching pornographic films in the Henry home and that the children were exhibiting inappropriate sexual behavior. A child abuse investigator visited the Henry household and found that Ms. Henry was away in London and that the children had been left in the care of Jiliane.

   
   

6. Prior to leaving for London, Ms. Henry was unaware that Jiliane had pornographic films in the house. Ms. Henry did observe B.W. watching television in Jiliane's room. When Ms. Henry would go by the room, B.W. would quickly switch channels. This happened on numerous occasions. Ms. Henry was "very concerned" and "suspicious" about B.W. changing the channels each time Ms. Henry walked by, but she took no action to investigate the cause of B.W.'s behavior.

7. After Ms. Henry returned from London, she learned that Jiliane did have some pornographic films which she kept in her room. B.W. had access to the films and did view them.

   
   

8. Rosalyn Jackson is a licensed foster care parent. She was interested in adopting at least one of the children in Ms. Henry's care. She visited the children in Ms. Henry's home and would take the children to her home on weekends. While the children were in her home, she observed that the children used vulgar language. S.A.W. would try to kiss or touch Ms. Jackson's rear when Ms. Jackson would bend over to pick up something. B.W. would go into the bathroom and fondle herself. T.W. and S.A.W. would try to fondle each other.

   At that time B.W. was nine years old, S.A.W. was four, and T.W. was three.

   
   

9. The children were removed from Ms. Henry's home. Two of the children were placed with Ms. Jackson's sister and one of the children was placed with Ms. Jackson. Ms. Jackson described the children as undernourished. T.W.'s hair was unkempt and dirty and looked as if it had not been cut or washed for a long time. When Ms. Jackson's sister had T.W.'s hair cut and washed, it was discovered that T.W.'s scalp was covered with a fungus. T.W.'s ears contained "black gook" which appeared to have been in his ears for quite a while. S.A.W. was wearing shoes that were two sizes too small.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.57(1) and 120.60, Florida Statutes.

    
    

11. Section 409.175(1)(a), Florida Statutes, as it relates to this proceeding provides:

    
    

    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, residential child caring agencies, and child-placing agencies by providing for the establishment of licensing requirements for

    such homes and agencies and providing procedures to determine adherence to these requirements.

    
    

12. HRS has adopted rules for foster care licensing pursuant to Section 409.175(4)(a), Florida Statutes. Rule 10m-6.012, Florida Administrative Code, provides:

    
    

    Section 409.175, F.S., mandates that the department establish minimum standards, or rules for the types of care defined in the statute. These standards, once promulgated, have the full force and effect of law. The licensing rules specify a level of care below which programs will not be able to operate.

    
    

13. Pertinent to this proceeding is Rule 10M-6.024(4)(g), Florida Administrative Code, which provides:

    The substitute care parents must notify the department regarding changes which affect the life and circumstances of the shelter or foster family.

    
    

14. Ms. Henry violated Rule 10M-6.024(4)(g) and the Agreement to Provide Substitute Care for Dependent Children by not notifying HRS of her departure to London and having left the children in Jiliane's care for the time that she was away. Ms. Henry acknowledged that she should have contacted HRS. Although HRS knew that Jiliane cared for the children during the day while Ms. Henry was working, there is nothing in the record to indicate that HRS had approved of Jiliane caring for the children on a 24 hour-a-day basis while Ms. Henry was absent from the country.

    
    

15. Ms. Henry was ultimately responsible for the care of the children regardless of whether she or her daughter were watching the children. Ms. Henry failed to provide adequate supervision of the children by having in her home pornographic films to which the children had access. Although she did not know her daughter had the films, she should have followed up on B.W.'s "suspicious" behavior of changing the television channels.

    
    

16. Based on Ms. Jackson's observations, the children did not have appropriate food, clothing and medical attention while in Ms. Henry's care. Thus, Ms. Henry did not protect the health and well-being of the children while they were in her care.

    
    

17. Ms. Henry's application for licensure as a foster parent should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Joan Henry's application

for a foster parent license.

DONE AND ENTERED this 14th day of September, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 14th day of September, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3042

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-2: Accepted in substance.

2. Paragraph 3: Rejected as not supported by the evidence. Ms. Henry testified that B.W. would switch channels not Jiliane.

3. Paragraphs 4-5: Accepted in substance.

4. Paragraph 6: Accepted in substance as it applies to the child, B.W. Rejected as to the other children because the only evidence presented was hearsay.

5. Paragraphs 7-8: Accepted in substance.

COPIES FURNISHED:

Colleen Farnsworth, Esquire Department of Health and

Rehabilitative Services

401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128

Ms. Joan Henry

18601 Northwest 22 Court

Miami, Florida 33056

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 ten 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: 95-003042

Orders for Case No: 95-003042