STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CATHY TAYLOR, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1695

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case on July 30, 1996, at Miami, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cathy Taylor-Barnes, Pro Se1

1515 Northwest 128th Street North Miami, Florida 33167

For Respondent: Colleen Farnsworth, Esquire

Department of Health and Rehabilitative Services

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

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner's foster care license should be renewed.

PRELIMINARY STATEMENT

By letter dated February 29, 1996, the Department of Health and Rehabilitative Services (Respondent) notified Cathy Taylor (Petitioner) that her foster care license would not be renewed. Respondent based the nonrenewal on three alleged violations committed by Petitioner: (1) Petitioner had violated Respondent's Discipline Policy in the disciplining of the foster children placed in her home; (2) Petitioner had violated the Bilateral Service Agreement by boarding other children or adults; and (3) Petitioner had violated Respondent's Rule 10M-6, Section 15 by not having sufficient income to assure her family's stability without relying on board payments from Respondent. By letter filed March 26, 1996, with Respondent, Petitioner requested a formal hearing. On April 4, 1996, this matter was referred to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf, presented the testimony of one witness and entered no exhibits into evidence. Respondent presented the testimony of four witnesses and entered four exhibits into evidence.

No transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the conclusion of the hearing. The parties filed proposed findings of fact.2

FINDINGS OF FACT

1. At all times material hereto, Cathy Taylor (Petitioner) was issued a foster care license by the Department of Health and Rehabilitative Services (Respondent).

   
   

2. On October 25, 1994, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children (Substitute Care Agreement) with Respondent, agreeing to abide by or with certain conditions which were considered essential for the welfare of foster children in her care. The Substitute Care Agreement provided in pertinent part:

   
   

   1. 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.

      * * *

      9. We will accept dependent children into our home for care only from the department and will make no plans for boarding other children or adults.

      * * *

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

      * * *

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

         * * *

      2. We will immediately report any injuries or illness of a child in our care to the department.

      * * *

      19. We will abide by the department's discipline policy which we received during the MAPP training.

      
      

   2. On October 13, 1993, Petitioner received a certificate from Respondent for successful completion of the MAPP training.

      
      

   3. On October 25, 1994, Petitioner signed a "Discipline Policy Agreement" (Discipline Agreement). The Discipline Agreement provides in pertinent part:

      [T]he following disciplinary practices are FORBIDDEN on our children. FAILURE OF THE FOSTER PARENT(S) ... TO COMPLY MAY RESULT IN THE REMOVAL OF THE CHILD(REN) FOR AN INVESTI- GATION AND RESULT IN THE CLOSURE OF YOUR HOME.

      * * *

      1. Hitting a child with ANY object.

      2. Slapping, smacking, whipping, washing mouth out with soap, or ANY other form of physical discipline.

      * * *

      (6) Delegating authority for punishment to another child or person that is not the Foster Parent(s) ... NO OTHER CHILD, ADOLESCENT, OR ADULT IN THE HOUSEHOLD SHALL HAVE THE AUTHORITY TO DISCIPLINE.

      
      

   4. On October 11, 1995, Petitioner and Trevor Barnes signed a "Bilateral Service Agreement" (Bilateral Agreement) with Respondent, agreeing to abide by or with several conditions which were considered essential for the welfare of the children placed in the foster home. The Bilateral Agreement provides in pertinent part:

2. We are fully and directly responsible to the Department for the care of the child.

* * *

1. 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....

   * * *

   8. We will accept dependent children into our home for care only from the Department and will make no plans for boarding other children or adults. We will notify the Department if any adult relative or family members returns to live in the home.

   * * *

   10. We will notify the Department immediately of any change in our address, employment, living arrangements, arrest record, health status or family composition, as well as any special needs of the child (i.e. health, school problems, emotional problems).

   * * *

   1. We will comply with all requirements for a licensed foster home as prescribed by the Department.

      * * *

   2. We will provide a nurturing, supportive, family- like home environment.

      * * *

   3. We understand that any breach of the Agreement may result in the immediate removal of the child(ren) and revocation of the license.

2. At that time, Trevor Barnes was Petitioner's fiance. They were married in January 1996 and have, therefore, been married for less than one year.

   
   

3. On October 11, 1995, Petitioner and Trevor Barnes signed a Discipline Agreement. The pertinent language of the Discipline Agreement was no different from the one signed on October 25, 1994.

   
   

4. In December 1994, minor foster child N.R. was placed in the care of Petitioner.

   
   

5. In 1995, minor foster children V.M. and J.M., two sisters, were placed in the care of Petitioner.

   
   

6. Petitioner was responsible for the supervision and care of the foster children.

   
   

7. Petitioner allowed her sister, an adult, and her sister's son, who was not placed with her under foster care, to live in her home. At the time, her relatives had no other place to live. Petitioner did not inform Respondent that her relatives were living with her. Petitioner violated the Substitute Care Agreement and the Bilateral Agreement.

   
   

8. At times, Petitioner left the children under the supervision and in the care of Mr. Barnes and her sister, thereby, violating the Substitute Care Agreement and the Bilateral Agreement.

   
   

9. On November 23, 1995, Thanksgiving day, one of Respondent's representatives, who was transporting V.M. and J.M. to visit with their prospective adoptive family, became aware of marks on one of V.M.'s legs. Respondent's representative overheard V.M. tell J.M. to look at what "mommy" had done. Respondent's representative examined V.M.'s leg and discovered marks on V.M.'s leg. She questioned V.M., regarding the marks, and V.M. confirmed what Respondent's representative had overheard.

   
   

10. Also, V.M. informed Respondent that Petitioner spanked both she and her sister, J.M.

    
    

11. Respondent's representative determined that the marks were consistent with marks which would result from striking the child's leg with a metal hanger. However, she could not determine if the marks were fresh or recent or old scars because she was not trained to make such a determination. There was no other evidence as to any other observations made regarding the marks.

    
    

12. Respondent's counselor, assigned to V.M. and J.M., reported the incident. An investigation was begun by Respondent for alleged abuse.

    
    

13. Neither V.M. nor J.M. testified at the hearing. The investigator who conducted the investigation on the alleged abuse did not testify.

    
    

14. Petitioner denies striking V.M. with a metal hanger or with any object. Moreover, she denies having ever inflicted corporal punishment on the children. Her method of punishing the children was taking away their privileges to do the things that they enjoyed. Further, Mr. Barnes questioned V.M., regarding the marks, who told Mr. Barnes that the natural mother inflicted the marks on V.M.

15. Respondent was unable to provide evidence as to the last period of time that the children had visited with their natural parent(s).

    
    

16. Petitioner did not report the marks on V.M.'s leg to Respondent. Petitioner violated the Substitute Care Agreement.

    
    

17. Regarding spanking the children, prior to the discovery of the marks on V.M.'s leg, Respondent suspected that Petitioner was spanking the children. Respondent's counselor to V.M. and J.M. questioned Petitioner as to whether she was spanking the children. Petitioner denied any spanking and responded with her method of punishment as indicated above. But, also, Petitioner informed Respondent's counselor that perhaps Mr. Barnes or her sister had spanked the children. Petitioner presented no evidence that she had confronted both her sister and Mr. Barnes as to whether they were spanking the children and that she had instructed them not to do so, as such action was violative of the Discipline Agreement. Further, there is no evidence that Respondent questioned Petitioner's sister or Mr. Barnes.

    
    

18. There is insufficient evidence to find that Petitioner used corporal punishment. However, the circumstances presented causes concern to the extent that Respondent was justified in questioning the suitability of Petitioner to be a foster care parent.

    
    

19. At all times material hereto, Mr. Barnes did not live with Petitioner. He lived with Petitioner's grandmother. Petitioner never indicated to Respondent that Mr. Barnes either lived in the foster home or did not live in the foster home. Although he spent considerable time at Petitioner's home, the evidence is insufficient to show that he lived with her.

    
    

20. Even if Mr. Barnes was living with Petitioner, Respondent became aware of it in October 1995. Respondent's counselor, who was assigned to N.R., believed that Mr. Barnes was living with Petitioner and informed him that, if he was going to live with Petitioner, she had to perform a background check on him. Respondent's counselor obtained the necessary information from Mr. Barnes to perform the background check. At that time, Respondent was aware that Petitioner and Mr. Barnes were planning to be married.

    
    

21. Petitioner received a monthly allowance from Respondent for the care of the minor foster children.

    
    

22. Petitioner became unemployed. Petitioner did not report her unemployment to Respondent. However, Respondent's counselor, who was assigned to V.M. and J.M., was aware of Petitioner's unemployment but assumed that Mr. Barnes was Petitioner's husband and that he was supporting the family. However, Petitioner and Mr. Barnes were not married, he was not living in Petitioner's home, and he was not supporting the family. Regardless, Petitioner violated the Substitute Care Agreement and the Bilateral Agreement.

    
    

23. Petitioner paid too little attention to V.M. and J.M.'s hygiene and personal appearance. The hygiene was inappropriate to the point that the children's school contacted Respondent. The children frequently appeared to be unkept, and Respondent did not observe the children with any new clothes.

    
    

24. Because of her unemployment, Petitioner had insufficient income to adequately support the minor foster children.

1. Because of the marks on V.M.'s leg, because of V.M.'s statement to Respondent that Petitioner inflicted the injury to her leg and had spanked both she and her sister, and because Respondent had determined that Petitioner had violated its rules and regulations, Respondent removed the minor foster children from Respondent's home. Furthermore, Respondent refused to renew Petitioner's foster care license.

   
   

2. Petitioner no longer wishes to renew her license.3 CONCLUSIONS OF LAW

3. 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.

   
   

4. Petitioner has the burden of proving by a preponderance of the evidence that her foster care license should be renewed. Department of Transportation v. J. W. C. Company, 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitatives, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

5. Section 409.175(1), Florida Statutes, provides in pertinent part:

   
   

   1. 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.

      
      

6. Rule 10M-6, Florida Administrative Code, sets forth the minimum standards by which foster parents must be evaluated.

   
   

7. Rule 10M-6.012 provides in pertitnent part:

   
   

   Section 409.175, F.S., mandates that the department establish minimum standards, or rules for the types of care defined in the statute. The 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.

   
   

8. Rule 10M-6.024 provides in pertinent part:

   
   

   (4) Responsibilities of the Substitute Care Parents to the Department.

   * * *

   (b) The substitute care parents are required

   to participate with the department in relicensing studies and in ongoing monitoring of their home, and must provide sufficient information for the department to verify compliance with all rules and regulations.

   * * *

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

   
   

9. Rule 10M-6.025 provides in pertinent part:

   
   

   1. Length of Marriage. If married, substitute care parents should have a stabilized, legal

      marriage of at least one year prior to being licensed.

   2. Income. Substitute care parents must have sufficient income to assure their stability and the security of their own family without relying on board payments. The substitute family must have sufficient income to absorb four to six weeks of a foster child's care until a board payment is received.

   
   

10. Petitioner has failed to meet her burden of proof. Petitioner has failed to meet the minimum standards of Rule 10M-6. In addition, during the course of her licensure, Petitioner violated several provisions of the Substitute Care Agreement and the Bilateral Agreement.

    
    

11. Regardless, Petitioner has indicated that she no longer wishes to renew her foster care license.4

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter

a final order denying the renewal of Cathy Taylor's foster care license.

DONE AND ENTERED this 26th day of November 1996 in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 26th day of November 1996.

ENDNOTES

1/ The foster care license is, and was at the time of renewal, in the name of Cathy Taylor. Subsequent to the time for renewal and at the time of hearing, Ms. Taylor was married, and her married name is Cathy Taylor-Barnes.

2/ Petitioner submitted exhibits with her proposed recommended order. The exhibits which were not submitted at hearing were not considered by the Administrative Law Judge.

3/ Petitioner stated in her proposed recommended order that she had no desire to renew her license.

4/ Ibid.

COPIES FURNISHED:

Cathy Taylor

1515 Northwest 128th Street North Miami, Florida 33167

Colleen Farnsworth, Esquire Department of Health and

Rehabilitative Services

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

Gregory D. Venz, Agency Clerk Department of Health and

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

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: 96-001695

Orders for Case No: 96-001695