STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY and MAXINE MILES, )

)

Petitioners, )

)

vs. ) Case No. 97-2511

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 18, 1997, by video between Tallahassee and Miami, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Maxine Miles, pro se

4121 Northwest Eleventh Court Miami, Florida 33127

For Respondent: William E. Stacey, Jr., Esquire

Department of Children and Family Services

401 Northwest Second Avenue Miami, Florida 33128

STATEMENT OF THE ISSUES

Whether Petitioners are entitled to renewal of their license to operate a foster care home.

PRELIMINARY STATEMENT

Petitioners filed for renewal of their license to operate a

foster care home. On March 31, 1997, Respondent notified Petitioners that their license would not be renewed based on reports that Maxine Miles had inappropriately disciplined V. B., a foster child who had been placed in their care.

Petitioners timely challenged the denial, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, Respondent presented its case first. Respondent presented the testimony of six witnesses and offered four exhibits1, each of which was admitted into evidence. Mrs. Miles testified on her own behalf, but presented no other witnesses and no exhibit. Mr. Miles did not appear at the formal hearing.

A transcript of the proceedings has been filed. The Petitioner and Respondent gave closing statements at the conclusion of the hearing and the Respondent submitted a proposed recommended order following the hearing. The closing arguments and the post-hearing submittal have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioners had been licensed to operate a foster care home for several years prior to April 30, 1997. Each license was for a one-year period and required annual renewal. The last license issued by Respondent to Petitioners was for the period May 1, 1996, through April 30, 1997. On March 31, 1997,

   Respondent advised Petitioners that it would not renew their foster care license because an abuse investigation found evidence

   that inappropriate methods of discipline had been used by Maxine Miles on V. B., a foster child who had been placed in their care.

2. Respondent provided Petitioners with information and training before they were initially licensed as foster care parents. As part of the initial training, Petitioners attended a thirty-hour course entitled Model Approach to Partnerships in Parenting (MAPP), which taught that corporal punishment on a foster child by a foster parent was prohibited. Petitioners knew, or should have known, that their use of corporal punishment on a foster child in their care could result in the revocation of their license or the denial of their application to renew their license.

3. On February 14, 1996, Petitioners executed a form styled "Discipline Policy Agreement" which expressly prohibits "hitting a foster child with any object" and also prohibits "slapping, smacking, whipping, washing mouth out with soap, and any other for [sic] of physical discipline." This agreement contained a caveat that failure to comply with the discipline provisions could lead to the closure of a foster home.

4. V. B. is a female born December 7, 1990. In 1992, V. B. was placed as a foster child in the care of the Petitioners.

5. On or about February 14, 1997, Nicole Marshal, a foster care counselor employed by Respondent, and Brenda Boston, her supervisor, visited with V. B. and observed marks that they

   believed were the results of corporal punishment. These marks included a cut on V. B.'s forehead (which had been stitched) and bruises, in the form of loops, on her arms, back, and legs. They questioned V. B. as to the causes of the cut and bruises. Based on statements made by the child, they immediately thereafter contacted the Florida Abuse Hotline Information System and reported a case of possible child abuse. As a result of that contact, a child abuse investigation was instigated by the Respondent's Child Protective Investigations Unit. This child abuse investigation was conducted by Lulus McQueen, an experienced investigator. Mr. McQueen also observed the cut and the bruises on V. B. and thereafter questioned the child.

6. Based on the physical observations and the statements made by the child, V. B. was removed from the foster care of the Petitioners on February 14, 1997.

7. On February 25, 1997, V. B. was examined by Dr. Walter Lambert, a medical doctor employed as the Medical Director of the Child Protection Team, and by Rita Duval, a registered nurse employed by the Child Protection Team. The cut on V. B.'s forehead and the bruises observed on February 14, 1997, were still visible. Dr. Lambert and Nurse Duval were of the opinion that the bruises were consistent with V. B. having been disciplined with a belt.2

8. Maxine Miles physically disciplined V. B. by spanking her using an open hand.3 Maxine Miles knew, or should have

   known, that this form of discipline was prohibited by Respondent.

   CONCLUSIONS OF LAW

   
   

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

10. Foster care licenses are issued by Respondent pursuant to the provisions of Chapter 409, Florida Statutes, and the rules adopted pursuant to those provisions. Section 409.175(8)(b)2, Florida Statutes, provides that a violation of licensing rules is a ground for denial of a foster care license.

11. Respondent failed to prove that the cut to V. B.'s forehead was anything more than an accident. Respondent also failed to prove that the bruising observed by the witnesses resulted from Maxine Miles whipping V. B. with a belt; however, the testimony of Maxine Miles established that she violated well- known rules prohibiting the administration of corporal punishment by spanking V. B.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the application filed by Larry and Maxine Miles for the renewal of their licenses to operate a foster home be denied.

DONE AND ORDERED this 9th day of January, 1998, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1998.

ENDNOTES

1/ These exhibits were pre-numbered as Respondent's Exhibits 1, 4, 6, and 8.

2/ V. B. made certain statements to Ms. Marshal, Ms. Boston, Mr. McQueen, Dr. Lambert, and Nurse Duval that led them to conclude that Maxine Miles had pushed V. B. into a wall, thereby causing the cut on her forehead, and that Maxine Miles had inflicted the bruises with a belt. V. B. did not testify at this proceeding. The statements that V. B. made to these witnesses constitute hearsay that do not complement or supplement other competent evidence. Pursuant to Section 120.57)1)(c), Florida Statutes, these statements cannot be used as the basis for findings of fact. Maxine Miles testified, credibly, that the injury to V. B.'s forehead was the result of an accident.

Respondent failed to prove by competent evidence that Maxine Miles pushed V. B. or otherwise intentionally inflicted the injury to her forehead. Maxine Miles also testified that she did not use a belt to discipline V. B. Respondent failed to establish by competent evidence that the bruise marks observed by the witnesses were caused by Maxine Miles. It is inappropriate to draw any inferences from the existence of the bruises because there was other evidence that could explain the existence of the bruises. This other evidence included testimony that V. B. spent unsupervised visits with her biological mother, who was known to be abusive, and that V. B. was hyperactive.

3/ This finding is based on the testimony of Maxine Miles. This finding should not be construed by Respondent to be a finding

that Maxine Miles was responsible for any of the bruises observed by the witnesses.

COPIES FURNISHED:

William E. Stacey, Jr., Esquire Department of Children and

Family Services

401 Northwest Second Avenue Suite N-1014

Miami, Florida 33128

Larry and Maxine Miles 4121 Northwest 11th Court Miami, Florida 33127

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children and

Family Services 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.

1 These exhibits were pre-numbered as Respondent's Exhibits 1, 4, 6, and 8.

2 V. B. made certain statements to Ms. Marshal, Ms. Boston, Mr. McQueen, Dr. Lambert, and Nurse Duval that led them to conclude that Maxine Miles had pushed V. B. into a wall, thereby causing the cut on her forehead, and that Maxine Miles had inflicted the bruises with a belt. V. B. did not testify at this proceeding. The statements V. B. made to these witnesses constitute hearsay that do not complement or supplement other competent evidence. Pursuant to Section 120.57)1)(c), Florida Statutes, these statements cannot be used as the basis for findings of fact. Maxine Miles testified, credibly, that the injury to V. B.'s forehead was the result of an accident. Respondent failed to prove by competent evidence that Maxine Miles pushed V. B. or otherwise intentionally inflicted the injury to her forehead. Maxine Miles also testified that she did not use a belt to discipline V. B. Respondent

failed to establish by competent evidence that the bruise marks observed by the witnesses were caused by Maxine Miles. It is inappropriate to draw any inferences from the existence of the bruises because there was other evidence that could explain the existence of the bruises. This other evidence included testimony that V. B. spent unsupervised visits with her biological mother, who was known to be abusive, and that V. B. was hyperactive.

3

This finding is based on the testimony of Maxine Miles. This finding should not be construed by Respondent to be a finding that Maxine Miles was responsible for any of the bruises observed by the witnesses.

Docket for Case No: 97-002511

Orders for Case No: 97-002511