STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILIES, )

)

Petitioner, )

)

vs. ) Case No. 96-3776

)

JUAN AND BERTHA ROSA, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Joyous D. Parrish, held a formal hearing in the above-styled case on December 11, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Colleen Farnsworth

Assistant District Legal Counsel Department of Children and Families

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

For Respondent: Lee Marks, Esquire

3326 Mary Street, Suite 202A Coconut Grove, Florida 33133

STATEMENT OF THE ISSUE

Whether the Respondents' foster care license should be revoked.

PRELIMINARY STATEMENT

This case began on June 25, 1996, when the Department of Health and Rehabilitative Services, now the Department of Children and Families (Department), informed the Respondents, Juan and Bertha Sosa, that their foster care license was being revoked. The notice alleged that the Respondents had failed to meet minimum standards of foster care licensure as outlined in Chapter lOM-6, Florida Administrative Code. More

specifically, the notice alleged that the Respondents had violated provisions of the agency's discipline policy agreement and Rules 10-6.024 and 10M-6.025, Florida Administrative Code. Thereafter the Respondents requested an administrative hearing and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on August 9, 1996.

At the hearing, the Petitioner presented the testimony of the following witnesses: Walter Lambert, a board certified pediatrician; M.A.G., a foster care child who resided with the Respondents; Bryan Travis, a police officer employed by the Miami Springs Police Department; Jerry Balester, a detective with the Miami Springs Police Department; Kathi Meter, a counselor working with the Department's case management services; Maria Alonzo, the Department's supervisor for the foster care management group at the time of the alleged incident; Yolanda Alfonso-Vo, a school group and individual therapist providing assistant to the minor at the time of the alleged incident; Gloria Harris, the records center manager for the Department's District 11; Zoila M. Sala, a senior counselor with the Department's licensing and child care placements; and Isabel Afanador, a senior specialist for licensing. The Petitioner's exhibits numbered 1 through 8 were admitted into evidence.

Respondents testified in their own behalf and presented testimony from Pura M. Ricardo, Bertha Sosa's daughter. Their exhibits numbered 1 and 2 were also admitted into evidence.

A transcript of the proceeding has not been filed. The parties stipulated that they would file proposed recommended orders within twenty days of the hearing. Petitioner submitted a proposed recommended order which has been considered in the preparation of this order. Respondents did not submit a proposed order.

FINDINGS OF FACT

1. At all times material to this matter, the Respondents were licensed as a foster home.

   
   

2. During the course of such licensure, a minor child, M.A.G., was placed within Respondents' home. It was Respondent, Bertha Sosa's intention to adopt M.A.G. and her minor brother who was also placed with Respondents.

3. Respondents were approved for licensure as foster parents through a private company. Such company was a third party screening agent used by the Department to process foster home applicants.

   
   

4. For reasons unknown, such company did not obtain Respondents' signature to or agreement for certain provisions which are required for licensure. For example, all foster home licensees are required to execute service agreements. No such agreement has been located for Respondents.

   
   

5. Pertinent to the service agreements are requirements regarding discipline which may be utilized by foster care licensees. In this instance, the discipline policy agreement prohibits: hitting a child with any object; slapping, smacking, whipping, washing mouth out with soap, or any other form of physical discipline; and humiliating or degrading punishment.

   
   

6. While the Respondents do not acknowledge that they executed such agreements, it is undisputed that the failure to do so would result in the denial of initial licensure.

   
   

7. The only reason Respondents sought initial licensure was to be able to adopt children. They were not then, and were not at the time of the hearing, interested in foster care. The foster care program was the vehicle they chose to be able to adopt.

   
   

8. M.A.G. has a history of physical and sexual abuse. It is not uncommon for children with such history to exhibit inappropriate behaviors. Such behavior may include, as described by Mrs. Sosa, "humping." Also, M.A.G. had difficulty with telling lies.

   
   

9. Mrs. Sosa admitted that when M.A.G. exhibited inappropriate sexual behavior, she would force the child into a cold shower.

   
   

10. Mrs. Sosa admitted that when M.A.G. lied, she would wash her mouth with soap.

    
    

11. On or about March 11, 1996, an investigation of abuse allegations began regarding M.A.G. and the Respondent, Juan Sosa.

12. M.A.G. alleged that while Mrs. Sosa was out of the home, Mr. Sosa hit her several times with a broomstick. According to M.A.G., such conduct was the result of M.A.G.'s disobedience and disruptive behavior which culminated in discipline.

    
    

13. Bruises consistent with a blunt instrument were observed on M.A.G.'s legs and arm. M.A.G. bragged that she could withstand, or feel no, pain.

    
    

14. The bruises were photographed within two days of the alleged incident.

    
    

15. Mr. Sosa denied inflicting the injuries sustained by M.A.G.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

17. The minimum standards for foster care licensure are set forth in Chapter 10M-6, Florida Administrative Code. Pertinent to this case are provisions which prohibit humiliating or unusual punishment and corporal punishment of any kind.

    
    

18. In this case, Respondents have admitted using punishment which is expressly prohibited by the rule. A foster parent may not wash a child's mouth out with soap. Rule 10M-6.024, Florida Administrative Code.

    
    

19. Additionally, a foster parent may not require a cold shower as discipline for inappropriate behavior. Such behavior is the equivalent to being placed in hot water which is also expressly prohibited by the rule. Supra.

    
    

20. Finally, not only are foster care licensees charged with complying with the Department's rules, they must abide by the service agreements. In this case, either Respondents did not execute the agreements which would make them ineligible for licensure; or, they breached the terms of same as outlined above. In either instance, they are not suitable for foster care licensure. Given the foregoing conclusion, it is unnecessary to resolve whether Mr. Sosa inflicted the injuries sustained by M.A.G.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Children and Families enter a final order affirming the revocation of Respondents' foster care license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of February, 1997.

JOYOUS D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997.

COPIES FURNISHED:

Colleen Farnsworth

Assistant District Legal Counsel Department of Children and Families

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

Lee Marks, Esquire 757 41st Street

Miami Beach, Florida 33140

Gregory D. Venz Agency Clerk

Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Coran General Counsel

Department of Children and Families Building 2, Room 204

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: 96-003776

Orders for Case No: 96-003776