STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-4958

)

MARY MITCHELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 16, 1998, via video teleconference, with the Petitioner and the Respondent appearing at Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William F. Stacey, Esquire

District 11 Legal Office

Department of Children and Family Services

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

For Respondent: Mary Mitchell, pro se

14920 Northwest 11th Avenue Miami, Florida 33168

STATEMENT OF THE ISSUE

Whether the Respondent's foster home license should be revoked for the reasons stated in the Petitioner's letter dated September 19, 1997.

PRELIMINARY STATEMENT

In a letter dated September 19, 1997, the Department of Children and Family Services ("Department") notified Mary L. Mitchell that her foster care license would not be renewed "based on evidence of use of inappropriate discipline method in your home." Ms. Mitchell requested a hearing, and the Department transmitted the case to the Division of Administrative Hearings for assignment of an administrative law judge. By notice, a formal hearing was held on February 16, 1998.

At the hearing, the Department presented the testimony of the following witnesses: Walter F. Lambert, M.D., a pediatrician and member of the Dade County Child Protection Team; Marguerita Velasquez, a family service counselor with the Department; Reynaldo Gonzalez, a children and family counselor for the Department's Licensing Unit; and L. B., A. D.'s sister. 1/ The Department's Exhibits 2, 3, and 4 were offered and received into evidence. Ms. Mitchell testified in her own behalf; she did not offer any exhibits into evidence.

L. B. is the ten-year-old sister of A. D., the five-year-old foster child who was allegedly disciplined inappropriately by Ms. Mitchell. At the hearing, counsel for the Department made a motion requesting that Ms. Mitchell be excluded during L. B.'s testimony. He cited as support Section 92.55(4), Florida Statutes (1977), which authorizes a court to enter any order necessary to protect a witness who is a child under the age of

sixteen years. According to counsel for the Department, although

L. B. had previously told him she was willing to testify at the hearing, on the morning of the hearing, L. B. told him that she did not want to testify if Ms. Mitchell was in the room. Counsel for the Department did not suggest any less extreme remedy than excluding Ms. Mitchell.

Counsel for the Department offered to elicit testimony from

L. B.'s foster care counselor, who is an employee of the Department, regarding the degree of emotional trauma L. B. would suffer if she were required to testify in Ms. Mitchell's presence. He did not offer to call any person qualified to render such an opinion, nor did he offer to present evidence on this matter from a person not aligned with the Department in this action.

L. B. was questioned in camera by the undersigned regarding the reason she did not want to testify in front of Ms. Mitchell. She stated that she was "uncomfortable" sitting in the same room with Ms. Mitchell and that she did not know why but she would be unable to speak in Ms. Mitchell's presence. L. B. stated that she and her brother and sister no longer live in Ms. Mitchell's home as foster children and that she does not have any contact with her. The motion to exclude Ms. Mitchell during L. B.'s testimony was denied upon consideration of the child's age and her demeanor during the in camera questioning; of the fact that the L. B. is not an alleged victim in this case but is presented

by the Department as a witness to Ms. Mitchell's alleged inappropriate discipline of her brother, A. D.; and of the fact that L. B. currently has no relationship with Ms. Mitchell and did not manifest or express any fear of retribution from

Ms. Mitchell as a result of her testimony. 2/

A transcript of the proceedings was filed with the Division of Administrative Hearings on March 26, 1998. The Department timely filed a proposed recommended order, and Ms. Mitchell timely filed a letter in which she set out her proposals. Both submissions have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Children and Family Services is the state agency responsible for licensing and regulating family foster homes in Florida. Section 409.175, Florida Statutes (1997).

2. Mary Mitchell's home was licensed as a family foster home from 1990 until her home was closed by the Department in September 1997. Neither Ms. Mitchell nor her home has been the subject of a complaint prior to that underlying the instant case.

3. In August 1997, A. D. and his sisters, C. D. and L. B., were foster children residing in Ms. Mitchell's home. At the

   time, A. D. was five years old, C. D. was eight years old, and

   
   

   L. B. was ten years old.

   
   

4. During a family therapy session at the Walden Community Center, the children reported to a counselor that they were beaten regularly by Ms. Mitchell. The counselor immediately called the Department's Abuse Hotline, and a Protective Investigator was dispatched to the home.

5. The counselor at the Walden Community Center also notified the foster care counselor assigned by the Department to monitor the children that the children had reported that A. D. was beaten by Ms. Mitchell every time he wet his pants and that

   L. B. and C. D. said that they were also beaten by Ms. Mitchell.

   
   

6. The Department's protective investigator took A. D.,

   
   

   C. D., and L. B. for evaluation to the University of Miami Child Protection Team. Walter F. Lambert, M.D., a member of the Child Protection Team, was asked to perform a medical evaluation of the children to determine if they had suffered any physical punishment or injury.

7. A case worker in Dr. Lambert's office interviewed the three children, and they all claimed that they were regularly beaten with belts and switches by Ms. Mitchell and her son.

8. A physical examination of L. B. and C. D. revealed no marks on their bodies.

9. A physical examination of A. D. revealed several red marks, bruises, and scabbed over abrasions on his buttocks,

   anterior upper thighs, and posterior thighs. These marks were consistent with having been inflicted within several days of the examination.

10. As part of his physical examination of A. D.,

    
    

    Dr. Lambert interviewed him about the origin of the marks. A. D. told Dr. Lambert that he was hit with a "twig from the holly tree," but he did not identify the person who hit him. The marks Dr. Lambert found on A. D.'s body were consistent with having been inflicted with a switch taken from a tree.

11. The children were removed from Ms. Mitchell's home and placed in another foster home. The children soon complained that they were beaten in this new foster home, but no marks were found on their bodies to corroborate these allegations. The children are no longer in this foster home but have been placed in a new foster home for therapeutic reasons.

12. Ms. Mitchell observed A. D.'s sisters whipping him with switches and a belt on more than one occasion. Each time she saw this behavior, she immediately stopped it.

13. The Department has presented no credible evidence to establish that Ms. Mitchell punished A. D., or his sisters, by beating them with a belt, switch, or any other instrument or that she used any other form of corporal punishment to discipline these children. 3/

14. The Department's letter to Ms. Mitchell notified her that her foster care license renewal was denied. However, the

    counselor in the Department's Licensing Unit responsible for monitoring Ms. Mitchell's home testified that her license was revoked prior to its expiration and her foster home closed as a result of reports of child abuse. The counselor was present at the meeting in which the decision regarding Ms. Mitchell's license was made, and his testimony was uncontroverted.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and .57(1), Florida Statutes (1997).

16. This case involves the revocation of Ms. Mitchell's family foster home license. See Dubin v. Department of Business Regulation, 262 So. 2d 273 (Fla. 1st DCA 1972)(holding that non- renewal of annual license cannot serve as substitute for revocation proceedings). Accordingly, the Department has the burden of proving that she committed the offenses alleged. See Florida Department of Transportation v. J. W. C. Co., Inc.,

    396 So. 2d 778, 788 (Fla. 1st DCA 1981)("'party asserting the affirmative of an issue before an administrative tribunal'" has the burden of proof).

17. A "license" for purposes of Section 409.175, Florida Statutes (1997), is defined in Section 409.175(2) as follows:

    (f) "License" means "license" as defined in s. 120.52(9).[4/] A license under this section is issued to a family foster home or other facility and is not a professional license of any individual. Receipt of a license under this section shall not create a property right in the recipient. A license under this act is a public trust and a privilege, and is not an entitlement. This privilege must guide the finder of fact or trier of law at any administrative proceeding or court action initiated by the department.

    By this definition, the legislature has clearly indicated its intent that the "clear and convincing" standard of proof made

    applicable in Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987), to the revocation of professional licenses is

    inapplicable to the revocation of a family foster home license. Therefore, the Department is required to prove the allegations in this case by a preponderance of the evidence. See Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d. 412, 415 (Fla. 4th DCA 1974) (generally, burden of proof before an administrative agency is by a preponderance of the evidence).

18. Rule 65C-13.010, Florida Administrative Code, defines the "Substitute Care Parents' Role as a Team Member." Rule

    65C-13.010 (1) sets forth the "Responsibilities of the Substitute Parent to the Child," and provides in subsection (b)5.f. that "[t]he substitute care parents must not use corporal punishment of any kind."

19. The Department requires all substitute parents to sign a Discipline Policy Agreement in which they acknowledge that they have been informed of the Department's policy against "[h]itting a child with ANY object. . . . [s]lapping, smacking, whipping, washing mouth out with soap, or ANY other form of physical discipline," and that they are aware that their family foster home could be closed if they fail to comply with the policy.

    Ms. Mitchell signed a copy of this agreement.

20. Based on the findings of fact herein, the Department has failed to prove by any quantum of evidence that Ms. Mitchell used an "inappropriate discipline method in her home."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the charges against Mary

L. Mitchell and reinstating her family foster care license.

DONE AND ENTERED this 5th day of June, 1998, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 5th day of June, 1998.

ENDNOTES

1/ Prior to receiving L. B.'s testimony, inquiry was made regarding her ability to observe, recollect and communicate facts and regarding her sense of a moral duty to tell the truth. She was found competent to testify.

2/ C. D., L. B.'s younger sister, was present at the hearing and was identified as a witness for the Department, which represented that C. D. had no problem testifying with Ms. Mitchell in the room. However, the Department closed its case without calling

C. D. as a witness.

3/ L. B. was the only witness who offered direct testimony that

A. D. was beaten every time he wet his pants and that Ms. Mitchell was the person who beat him. However, after having carefully observed the demeanor of this witness and considered her testimony in light of all of the evidence presented, this testimony is rejected as not credible.

4/ Section 120.52(9), Florida Statutes (1997), provides: "'License' means a franchise, permit, certification, registration, charter, or similar form of authorization required by law, but it does not include a license required primarily for revenue purposes when issuance of the license is merely a ministerial act."

COPIES FURNISHED:

William E. Stacey, Esquire District 11 Legal Office

Department of Children and Family Services

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

Mary Mitchell, pro se

14920 Northwest 11th Avenue Miami, Florida 33168

John S. Slye General Counsel

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk 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: 97-004958

Orders for Case No: 97-004958