STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1473

)

ALBERTA HOLMES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Claude B. Arrington, held a formal hearing in the above-styled case on June 11, 1996, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Carolyn Hochberg, Esquire

Department of Health and Rehabilitative Services

111 South Sapodilla Avenue, Room 204 West Palm Beach, Florida 33401

For Respondent: Alberta Holmes, pro se

Post Office Box 1230

West Palm Beach, Florida 33402 STATEMENT OF THE ISSUES

Whether Petitioner has grounds to revoke Respondent's license as a foster parent.

PRELIMINARY STATEMENT

Petitioner notified Respondent on October 30, 1995, that her foster home license was being revoked effective November 1, 1995. Respondent timely requested a formal hearing to challenge the proposed revocation, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, the Petitioner presented the testimony of Mary Bosco, Joanne Weisiger, Barry Adriance, Celita Ryan, and the Respondent, Alberta Holmes. Ms. Bosco, Ms. Weisiger, Mr. Adriance, and Ms. Ryan are all employed by Petitioner. Ms. Bosco is a children and family counselor, Ms. Weisiger is a foster home licensing counselor, Mr. Adriance is a protective services investigator, and Ms. Ryan is a foster care counselor. Petitioner offered three exhibits, each of which was admitted into evidence. Respondent testified on her own behalf and offered the additional testimony of Sonya McFarlane, the mother

of a child who had been in Respondent's foster care. Respondent offered two exhibits, both of which were admitted into evidence.

No transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The proposed findings of fact submitted by Petitioner that are based on hearsay evidence are rejected for the reasons stated in the Recommended Order. The remaining proposed findings of fact are adopted in material part by the Recommended Order. The Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Respondent was initially licensed to operate a foster home in 1992. In April 1995, her license was renewed.

   
   

2. As part of the licensing process, the Respondent signed documents entitled "Agreement to Provide Substitute Care for Dependent Children" and "Discipline Policy", thereby agreeing to comply with the terms of each document. Both of these documents clearly provide that corporal punishment of a foster child is prohibited.

   
   

3. On October 30, 1995, Petitioner notified Respondent by letter of its intent to revoke her foster home license and stated, in pertinent part, as follows:

   
   

   This letter is to advise you that your Foster Home license is being revoked, effective November 1, 1995. This decision has been made based on our past concerns about inappropriate child-parent visits, the recent complaint about use of physical discipline, and the altercation on 09/18/95 between you and Foster Parent Veronica King. 1/

   
   

4. At the times pertinent to this proceeding, Respondent provided foster care for three teenage girls under the age of 18 years.

   
   

5. On September 29, 1995, Petitioner's abuse registry received a report that Respondent had been physically and verbally abusive to the children in her foster care. The report included allegations that Respondent had hit and knocked down one of the girls in her foster care and that she attempted to return the girl to her natural mother, who had abused her daughter in the past.

   
   

6. In response to that report, Petitioner removed the three girls from Respondent's foster care and began an investigation of the allegations. As part of that investigation, Respondent and each of the three girls were interviewed by employees of the Petitioner with appropriate training. The three girls who had been in Respondent's foster care made statements to these employees pertaining to their treatment by Respondent. These statements are hearsay that cannot be used as the sole basis for a finding of fact in this proceeding. 2/

7. In her interview, Respondent denied that she physically abused her foster children, but she admitted that she intentionally pushed one of the girls to the ground. Respondent violated Petitioner's discipline policy by pushing this girl to the ground.

   
   

8. Respondent denied that she threatened to return one of the girls to the girl's abusive mother. Instead, she testified that she arranged for this girl to visit with the abusive mother. There was no competent evidence to dispute Respondent's testimony.

   
   

9. Respondent conceded that she talked firmly to the three girls, but she denied that she verbally abused them. There was no competent evidence to dispute Respondent's testimony.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding.

    
    

11. Section 409.175, Florida Statutes, provides for the licensure of foster homes, in pertinent part, as follows:

    
    

    (1)(a) 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 the establishment of licensing requirements for such homes . . . and providing procedures to determine adherence to these requirements.

    * * *

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

    (b) Any of the following actions by a home

    . . . or its personnel is a ground for denial, suspension, or revocation of a license.

    * * *

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

    
    

12. The Petitioner's policy prohibiting corporal punishment protects the health, safety, and well-being of the children who are cared for in a foster home. The Petitioner established that Respondent attempted to discipline one of the girls in her foster care by pushing her to the ground. This inappropriate form of discipline violated Petitioner's clear disciplinary policy. Pursuant to Section 409.175(8)(b)2, Florida Statutes, Petitioner should revoke the Respondent's foster home license. The remaining allegations against Respondent were not established by competent evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that revokes Respondent's

foster home license.

DONE AND ENTERED this 2nd day of October, 1996, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1996.

ENDNOTES

1/ The letter of October 30, 1995, thereafter advised Respondent of her right to challenge the intended agency action. Petitioner did not pursue the allegation as to the altercation with Veronica King at the formal hearing.

2/ See, Sections 90.801(1) and 120.57(1)(c), Florida Statutes.

COPIES FURNISHED:

Carolyn Hochberg, Esquire Department of Health and

Rehabilitative Services

111 South Sapodilla Avenue, Room 204 West Palm Beach, Florida 33401

Ms. Alberta Holmes 1349 10th Street

West Palm Beach, Florida 33401

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 2, Room 204-X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services Building 2, Room 204-X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001473

Orders for Case No: 96-001473