STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-1476

) CLEVELAND FARMER and LISALOTTE ) FARMER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Administrative Law Judge in MacClenny, Florida, on September 26, 1997. The appearances were as follows:

APPEARANCES

For Petitioner: Roger L. D. Williams, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

For Respondent: Terence M. Brown, Esquire

Brown and Christopher

486 North Temple Avenue Starke, Florida 32091-0040

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Respondents should suffer revocation of a Foster Care License for the reasons stated in the Administrative Complaint, involving

alleged use of corporal punishment to discipline two children placed in their care.

PRELIMINARY STATEMENT

This case arose upon the filing of an Administrative Complaint on March 20, 1997, by the above-named agency (Department). It is alleged, in essence, (pursuant to Section 409.175, Florida Statutes), that the above-named Respondents violated Rule 10M-6.024(5)(e)(f), Florida Administrative Code, and Rule 10M-6.023(1)(10)(e), Florida Administrative Code, by allegedly employing corporal punishment in the discipline of two foster children placed in their care, and by thus not assuring them of health, safety, and a healthy environment, free from harm. The Respondents contested the allegations of the Administrative Complaint and timely requested a formal proceeding to dispute them.

The cause came on for hearing as noticed. The Petitioner agency presented the testimony of four (4) witnesses and presented the two abuse reports into evidence as Petitioner's Exhibits 1 and 2. The reports were admitted into evidence as required by law but can only be considered as corroborative hearsay in accordance with Section 120.58, Florida Statutes. The Respondents presented the testimony of seven (7) witnesses, including both Respondents testifying on their own behalf.

Additionally, the Respondents presented a photo into evidence as Respondents' Exhibit 1, which was admitted.

Upon conclusion of the proceedings the parties availed themselves of the right to file proposed recommended orders. Although they were given, upon their request, an extended briefing schedule to do this, no proposed recommended orders have been filed.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged in pertinent part with regulating the licensure and child care standards of foster care providers. The Respondents are licensed foster care providers, licensed by the Petitioner Department.

2. Billie Harbison is the foster care supervisor with the Department engaged in training and licensure of foster care families. She is familiar with the Respondents as foster care providers, having been involved in their licensure in 1995. In the course of her involvement with the Respondents as foster care parents, she instructed them as to the discipline policy and training provided to them as foster parents. Sometime in late 1996 she became aware of the abuse report of September 1996 concerning Joseph I. and Jerome I., which is Petitioner's Exhibit

1. That report indicated the foster parents, the Respondents, were alleged to have struck the two boys with a belt (extent of injuries, if any, unknown) and that one of the boys indicated

   that his foster mother taped his mouth shut when he talked too much. Because she felt that the report showed abuse, Ms.

   Harbison recommended revocation of the Respondents' license.

   
   

   1. Licensed therapists were working with the children during times pertinent hereto, including the time when the abuse report was rendered because the children are "ADHD" (Attention Deficit Hyperactive Disorder). Ms. Harbison never saw nor interviewed the two children nor had any professional become aware of or recorded indications of abuse. No therapist working with the children ever reported any indicia of abuse nor were they ever interviewed.

   2. Jim Hutchison, a therapist with the Children's Home Society, testified for the Department. He diagnosed both children as ADHD and Joseph to be "oppositionally defiant." He described both children as difficult to converse with and that Jerome was evasive about what happened in his relationship with his natural mother and that Joseph could not be relied upon to testify accurately and honestly.

   3. Rachel Sweat is a kindergarten teacher with the Baker County School Board. She only had contact with the children for four to five days. She recounted a hearsay statement, which was admitted into evidence as a "spontaneous utterance," from one of the children concerning "Momma" taping their mouths. This statement, coupled with other testimony reveals that the child

      was referring to his natural mother and not to his foster mother, Ms. Farmer.

   4. Brenda Van Landingham was a shelter parent for the children for two months. In testifying for the Respondents she described the children as very aggressive, fighting constantly with other children. They always sought to place the blame for any altercation on other children and showed a propensity to lie. She noted that they referred to their natural mother as "Trish" or "Momma" or "Momma Trish." Both children showed a propensity to become very angry when their natural mother failed to arrive for visitation. She also noted in her testimony that in conversations with Mrs. Farmer, Mrs. Farmer told her that her discipline method with the children was to use "time out" and not to use corporal punishment. She found that worked better for her.

   5. Fay Wood testified for the Respondents. She holds Bachelor of Science and Master of Science degrees in psychology. She is currently working on attainment of a Ph.D. with the Fielding Institute and practices as a children's psychological therapist with the North Florida Mental Health Center. She has seen both children on a weekly basis and the evidence shows that she saw them for at least twenty weekly visits. She noted that she had to counsel the children individually because when they were together in the same room they became very aggressive with each other. Although she saw the children every week, she

      obtained no reports or indications from either of them that they were being corporally punished or that their mouths had been taped. She saw no indications that the children had been abused by the Respondents. Although she questioned the children about how they were disciplined at home and got an answer to the effect that they were spanked or had "time out," the only reference to spanking indicated that a person called by the child or children "Daddy Willis" had ever spanked them. It may be deduced from the other record evidence that that person is someone involved with the household of the children's natural mother. In any event, however, there is no evidence that either of the Respondents had spanked the children as foster parents. Ms. Wood saw evidence of good results from the Farmer's care of the children. She also observed evidence in the children of a propensity to lie.

   6. Natalie Wilson is director of the "Love Center" a day care facility. She has cared for both children. She never heard of or saw any indications of any inappropriate conduct by the Respondents involving corporal punishment or abuse of the children. The children never described any spanking, slapping or other corporal punishment incidents to her. They never described any incidents involving taping of their mouths for excessive talking, et cetera.

   7. Cynthia Stewart is a licensed foster parent and has had contact with the Farmers. She knows the Farmers to have used "time out" as a disciplinary measure and they had advised her to

      do so in her practice as a foster parent, because such disciplinary measures had worked well for them. Likewise she never saw any signs in these children of spanking or corporal punishment by the Respondents.

   8. Tracey Forest is a counseling professional employed with the Meridian Behavioral Health Center in MacClenny. Without objection she described receipt of a letter from a therapist or counselor regarding the Respondents' good parenting practices. She herself neither observed nor found any record of abuse by the Farmers of the children. In fact Joseph I.'s medical record indicated that although his natural mother "Momma Trish" struck him, that his foster parents did not hit him. She is aware of no indication or record that the Farmers had struck the children.

   9. Lisalotte Farmer, a Respondent, testified on her own behalf and that of her husband, Cleveland Farmer. She described her love for children and the subject children and the fact that she and her husband wish to continue to be foster parents. They do not use corporal punishment and found that it is not necessary. Their disciplinary measures involve use of "time out" when discipline needs to be imposed and buying the children small gifts as rewards for good behavior. She also recounted that the children often showed a propensity to lie.

   10. In summary, the preponderant credible evidence has not established that the acts of abuse and corporal punishment

       occurred nor that the Respondents perpetrated such. The abuse

       reports in evidence as "corroborative hearsay" are not probative of any material facts in issue. The reports themselves are hearsay and the witnesses testifying for the Petitioner agency had no independent knowledge of facts tending to show that child abuse or corporal punishment had occurred nor any independent, competent knowledge as to the identify of the perpetrators, if such had occurred. Thus there is no competent, non-hearsay testimony or evidence supportive of the operative facts charged against the Respondents which the abuse reports could corroborate. Consequently they are not of material, evidential value. The instances of corporal punishment or child abuse have not been proven to have occurred. The Respondents did not perpetrate such. CONCLUSIONS OF LAW

   11. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   12. Section 409.175(8)(a), Florida Statutes, provides:

       
       

       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 or agency.

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

       Additionally, Rule 10M-6.024(5)(e)(f), Florida Administrative Code, provides:

       The substitute care parents must not subject children to cruel, severe, humiliating or unusual punishment . . . the substitute care parents must not use corporal punishment of any kind.

       
       

       Additionally, Rule 10M-6.023(1)(10)(e), Florida Administrative Code, provides that successful foster parents must be able to assure health and safety of children in their care, to provide a healthy environment for children and to keep them free from harm. The Department thus contends that the Respondents used corporal punishment to discipline Joseph I. and Jerome I., and taped their mouths, which is, itself inappropriate punishment.

   13. The preponderant, credible evidence and testimony, supportive of the above Findings of Fact, does not establish that corporal punishment or mouth-tapping occurred nor that the Respondents were the perpetrators of any such conduct or potential harm to the children involved. If the children were corporally punished at all, which has not been definitively established by preponderant evidence, the corporal punishment was perpetrated by their natural mother or/and a male individual "Daddy Willis" who, implicitly, was an habitué of the children's natural mother's household. There has been no credible proof that the Respondents have perpetrated any of the acts with which they are charged and to which the abuse report involved relates.

RECOMMENDATION

Accordingly, having considered the foregoing findings of fact and conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is

RECOMMENDED that a Final Order be entered by the Department of Children and Family Services dismissing the Administrative Complaint in its entirety and restoring the Respondents' foster care licensure status to good standing.

DONE AND ENTERED this 4th day of February 1998, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(805) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1998.

COPIES FURNISHED:

Terence M. Brown, Esquire Brown and Christopher

486 North Temple Avenue Starke, Florida 32091

Roger L. D. Williams, Esquire Department of Children

and Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Gregory D. Venz, Agency Clerk Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, Esquire 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: 97-001476

Orders for Case No: 97-001476