STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 98-1928

)

JOHN SAMPSON AND ANNETTE )

SAMPSON, )

)

Respondents.¹ )

) ANNETTE SAMPSON, )

)

Petitioner, )

)

vs. ) Case No. 99-5240

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings through its duly-designated Administrative Law Judge, Mary Clark, conducted a hearing in the above-styled cases on April 14, 26-28, May 22 and 25, June 15 and 16, and June 23, 2000, in Tallahassee (by telephone and video-conference), Lakeland, and Tampa, Florida.

APPEARANCES

For Petitioner: Raymond R. Deckert, Esquire

Jennifer Lima, Esquire Department of Children and

Family Services

4000 West Dr. Martin Luther King, Jr.

Boulevard

Tampa, Florida 33614

For Respondents: Leenetta Blanton, Esquire

3407 West Morrison Avenue Tampa, Florida 33629

STATEMENT OF THE ISSUES

The issues in these consolidated cases are whether Respondents' foster home license should be revoked as stated in an Amended Administrative Complaint dated October 6, 1999, and whether Mrs. Sampson's request to adopt a child, A.H., should be denied as explained in a letter dated October 6, 1999.

PRELIMINARY STATEMENT

On April 23, 1998, the DCFS (Petitioner or agency) referred John and Annette Sampson's (Respondents or Sampsons) request for hearing to the Division of Administrative Hearings (DOAH). This case (DOAH No. 98-1928) resulted from an Administrative Complaint proposing to revoke the Sampsons' foster care license. For various reasons, including the pendancy of a related dependency proceeding, the case was placed in abeyance at the request of the parties.

Later, when Mrs. Sampson requested a hearing on the agency's denial of her adoption of the child, A.H., the second

case was sent to DOAH, was assigned as DOAH No. 99-5240, and was consolidated with DOAH No. 98-1928 for consideration in a single proceeding.

At hearing the agency presented testimony of the following witnesses: Isiaah Howell; Donald Dixon; Linda Altman; Bonnie Troy; Jim Hines; Laleh Baker-Posey, M.D.; Rick Fifer; Lisa Sims; Jim Cunningham; Veronica Gaddis; Bruce Bryant; Jennifer Ellis; and Miguel Del Toro, M.D. These exhibits offered by the agency were received in evidence: 1-12, 14-20, 22-26, and 28-31.

Exhibit Nos. 13 and 21 were not offered, and Exhibit No. 27 was rejected as hearsay. Exhibit No. 26, a deposition of Sylvia Thomas, now deceased, was received in evidence over objection.

Respondents presented testimony of these witnesses: Robert Fay, M.D.; Paul Murphy, M.D.; Alvin Felman, M.D.; John Aime, M.D.; John Carr, M.D.; Edward Whyte, Ph.D.; Phoebe Irby; Maryanne Peters; Janet Wright, LPN; Det. Lee Rasche; Det. Mike Caputo; Susan Alston; Sara Hillard; Rick Fifer; Betty Shifflet; Shirley Johnson; Jennifer Ellis; and John Sampson. Respondents offered Exhibits Nos. 1-8. These were received in evidence with the exception of Exhibit Nos. 3 and 4, which were marked for identification only and rejected as irrelevant. Exhibit No. 1 (Dr. Felman's resume) and Exhibit No. 8 (Sylvia Thomas' hardwritten notes) were not provided to the Administrative Law Judge and could not be considered.

No transcript was prepared. The parties provided Proposed Recommended Orders on July 3 and July 10, 2000.

FINDINGS OF FACT

1. The Department of Children and Family Services is the state agency responsible for licensing and regulating foster homes. It also is responsible for receiving and approving applications for adoptions.

2. John Henry and Annette Sampson live in Plant City, Florida. They have been married approximately 24 years. They have adult children and three adopted children, one of whom is their biological grandson. The other two children, both boys, were foster children whom they raised from infancy (R.S., age 10; and D.S., age 9).

3. Mrs. Sampson, a licensed practical nurse (LPN), met

   
   

   R.S. when she cared for him in the hospital following his birth.

   
   

   He had many medical problems and his biological mother was unable to care for him. Mrs. Sampson bonded with the child and sought and received a special foster home license so she and her husband could take him home. R.S. thrived in the care of the Sampsons despite his poor prognosis.

4. The Sampsons were thus licensed as a foster home in 1990, and over an 8-year period cared for 14 foster children, most of whom had complex medical problems.

5. A.H. was placed with the Sampsons when he was approximately one-month old in 1993. He had been exposed to drugs during gestation and had complicated medical problems at birth. He also thrived in the Sampson's home despite poor prognosis for survival. He bonded with the family and considers the Sampsons his parents and the three other adopted children as his brothers.

6. By November 1997, when the children were removed from the Sampson home, Mrs. Sampson had already requested permission to adopt A.H. and was working with the agency on the details of a subsidy for the child.

7. Also living with the Sampsons in November 1997 were two female foster children: A., who was 7 years old and was profoundly mentally handicapped; and M., who was 6 years old, partially paralyzed, and mentally handicapped. The two girls were placed with the Sampsons in February and May 1997; both had been previously subjected to horrific abuse and both began to respond positively, physically and mentally, to the loving care of the Sampsons.

8. The events which led to removal of children from the Sampson home commenced in September 1997.

9. Because of her mental condition M. was considered a danger to herself. She had poor impulse control and ate or chewed clothing, bedding, feces, and anything she could get in

   her mouth. A Childrens Medical Services (CMS) physician had prescribed restraints for her and Mrs. Sampson used then sparingly. Generally she would restrain M. when she put her to bed at night and would remove the restraints when the child fell asleep.

10. One evening in September 1997, Mrs. Sampson put M. to bed with her restraints. Shortly later Mrs. Sampson went to work on her part-time nursing shift and forgot to tell Mr. Sampson to remove the restraints. The next morning when she returned home Mrs. Sampson found the child still restrained by her wrist, with some swelling. When she took M. to school Mrs. Sampson pointed out the swelling to the school nurse and explained what happened.

11. Because of their routine practice to notify a caseworker of any marks on a foster child, the nurse or M's teacher called the agency. Neither the nurse nor the teacher was concerned about abuse in this case.

12. As a result of the report an abuse investigation commenced and Jim Cunningham, a Child Protection Investigator, took M. to the Child Protection Team (CPT) physician for an examination.

13. Dr. Laleh Bahar-Posey was the CPT medical director.

    
    

    In her medical examination Dr. Posey noted circular marks on the child's left forearm and both ankles, consistent with ligature

    and consistent with her being tied to the bed. In her testimony at hearing Dr. Posey clarified that she had confirmed during the medical examination that the leg marks were caused by M.'s braces and that Mrs. Sampson had only restrained one wrist.

    Because the report remained unchanged, however, the agency persisted until the hearing in its assertion that M. had been bound by her arms and legs overnight.

14. Dr. Posey also noted in her examination of M. that the child had a mark on her left forearm that appeared to be an iron burn. Because of the position of the point of the burn, facing the outside of the arm, and because of the child's partially immobile right hand and arm, Dr. Posey and the CPT social worker surmised that the burn was not accidental nor self-inflicted.

15. Mrs. Sampson's explaination of the burn was that her daughter-in-law had been ironing in another room of the home and briefly left the iron unattended. Mrs. Sampson was summoned by a yell from M. Mrs. Sampson immediately saw the child's burn and treated it with salve and a bandage.

16. The next day Ms. Sampson told the school nurse about the burn and asked whether she should take M. to the doctor. The nurse examined the burn and determined that it was minor, was not even blistered, and was barely visible. She did not recommend that Mrs. Sampson take M. to the doctor and the nurse

    understood that M. could have accidentally caused the burn herself.

17. Although she cannot use her right hand and arm, M. swings the arm as she walks. She is very clumsy and her gait is unsteady. The burn mark according to the weight of credible testimony is wholly consistent with M.'s knocking the iron against her left forearm while flaying her right arm around the ironing board. The pink mark in the healing stage was much more evident on M.'s dark skin than it would have been on a Caucasian child.

18. The final incident leading to removal of the children from the Sampson home was a report to the agency on or about November 17, 1997, that M. had broken her arm about 3 weeks earlier.

19. The Child Protective Investigator obtained the medical records from South Florida Baptist Hospital in Plant City and concluded that because the break was identified as a spinal fracture, requiring a twisting motion, the injury was an "inflicted injury." The agency immediately made plans to remove all children from the Sampson home and took the records to Dr. Posey for review. Dr. Posey's notes after her review of the medical records conclude that the injury was not consistent with Mrs. Sampson's alleged history that the child fell while briefly unattended in the bathroom. Dr. Posey's notes state her "grave

    concerns" about the safety of this child and other children in the home.

20. Agency staff, including the Child Protection Investigator, a supervisor, and foster care and adoption counsellors convened at the Sampson home on the evening of November 17, 1987. Mrs. Sampson was not home, and Mr. Sampson was home with the three adopted children and the three foster children (A.H., A., and M.). The staff removed the children from the home and placed them in other foster homes or shelter homes.

21. Several things concerned the staff when they were in the process of removing the children. Lesa Simms, the adoption supervisor, saw A.'s braids tied to her bed and Mr. Sampson quickly loosened them. When asked where the girls' clothes and medicine were stored Mr. Sampson said that he took care of the boys and did not know much about the girls. Several staff noticed that prescription bottles and loose pills were left in the kitchen, some on the counter, others in a cabinet within reach of some of the children. One of the staff had to call the pharmacy to find out which medications went with each child.

22. After the children were removed from the Sampson home Ms. Sampson's application to adopt A.H. was reviewed by the agency's Adoption Review Committee which recommended the application be denied. Although the committee members were

    aware of Mrs. Sampson's prior glowing record as an adoptive and foster parent, the series of three injuries to M. was too serious to ignore.

23. The agency also initiated revocation of the Sampson's foster home license.

24. The Amended Administrative Complaint in Case No. 98- 1928 states these bases for the intended revocation:

    1. A foster child in your care was bound by her arms and legs overnight resulting in ligature marks on the child. The foster mother, Ms. Sampson, stated she forgot to remove the restraints. Section 409.175(8)(b)(1), Florida Statutes.

       
       

    2. A foster child in your care received a spiral fracture on her arm when she was in the bathtub. Medical authority states the injury inflicted was inconsistent with the explanation given by you during the Child Protection Investigation. Section 409.175(8)(b)1, Florida Statutes.

       
       

    3. A foster child in your care received an iron burn on her arm. The child was seen by a physician who stated the injury was not consistent with the account given by you. Her conclusion was that the iron burn appeared to be consistent with an inflicted injury. Section 409.175(8)(b)1, Florida Statutes.

       
       

    4. During a visit to your home by department staff, medicine bottles with their safety lids removed were not stored in an appropriate place out of the reach of the children. The bottles were filled with various drugs, such as anti-psychotics, amphetamines, and other drugs that were within reach of most of the foster children in the home. There were loose pills in the

       cabinet above the counter, along with hot pepper flakes also within reach of most of the foster children in the home. You were out of town according to your husband, who stated he did not know anything about the girl's issues, Section 409.1275(8)(b)2, Florida Statutes, and 65C-13.010(1)(b)7.d, Florida Administrative Code.

       
       

    5. A staff individual observed Mr. Sampson untying a child's hair from the crib, Section 409.175(8)(b)(2), Florida Statutes and Rule 65C-010(1)(b)5.e, Florida Administrative Code.

       
       

25. The October 6, 1999, letter informing Mrs. Sampson of the adoption request denial states:

    The Administrative Rule 65C-16 currently in effect provides that "if allegations of abuse/neglect or abandonment have been verified, the application must be rejected and referral to the Adoption Applicant Review Committee is not required."

    
    

    Despite this provision, the Adoptive Applicant Review Committee and the district administrator reviewed your application. It was decided that your application would be rejected based upon the facts involved in the Florida Protective Services System reports #97-103474 and #1997-126233, not just the disposition decision of these two reports.

    
    

26. Abuse report 1997-103474 had a finding of "some indicators" of burns/scalds with regard to the burn on M.'s left arm. Abuse report 1997-126233 was "verified" for bone fracture/neglect and inadequate supervision and conditions hazardous to a child.

27. The evidence in this protracted consolidated proceeding does not support the agency's intended actions.

28. There is no evidence that Mrs. Sampson abused M. or any other child in her care. The ligature marks, the burn, and the broken arm were each explained by competent experts as accidents which would not be unusual in any normal family and which were entirely consistent with the history offered by Mrs. Sampson. The injuries were certainly consistent with M.'s complex mental and physical condition.

29. In a child under twelve months of age and not walking, a spiral fracture would be an immediate cause for concern. But in an older child such as M., a spiral fracture would occur in a fall when the limb is immobilized on impact and the body twists around it. A deliberate twisting by Mrs. Sampson or someone else would have left such marks on the child's arm that the physicians who saw her in the emergency room immediately after the accident would have been alerted. Instead, no physician who treated M. ever suspected abuse. Dr. Posey did not see her, but instead only viewed the X-rays and the conclusion by Dr. Del Toro, the emergency room radiologist, that the fracture was a "spiral fracture."

30. There is no evidence of false or "inconsistent" histories of the injury reported by Mrs. Sampson. She did not see the child fall; she was bathing M. and left the bathroom

    briefly; when she returned, the child was on the floor. This account is still consistent with her account to the psychologist, Dr. Whyte, that when she attempted to pick up the child they both fell. In hearing, and in her interview with Dr. Whyte, Dr. Posey receded from her former opinion that the fracture had to be non-accidental.

31. Only one agency staff person observed Mr. Sampson's "untying" A.'s braids from her bed although approximately six individuals, including a law enforcement officer, were at the Sampsons' home gathering the children. The action as described by Ms. Simms was very quick. It might have been as benign as untangling the child's hair which was caught in the bed. Mr. Sampson unequivocaly denies that the child's hair was tied; other agency witnesses testified that they followed Ms. Simms and saw M. sitting or standing in her crib, not lying down with her hair tied.

32. The medications were improperly stored but were inaccessible to most of the children. According to agency witnesses this violation would not have been a basis for denial of an adoption or license revocation. No one, including agency workers who had visited the home many times, announced or unannounced, had ever had a problem with storage of medications at the Sampson home.

33. In fact, no one, not the psychologist, not adoption workers, teachers, co-workers, licensing staff nor physicians who had observed the Sampson children in the home, at school, or in the community, ever saw anything other than loving, caring, conscientious parenting by the Sampsons.

34. Mrs. Sampson could be aggressive and demanding, but always as an advocate for the children. She made requests for special equipment, like a Geri-chair, that would help the children become more self-reliant. She minimized the use of physical restraints and she consulted with the physicians on reducing medications that she felt were keeping M. over-sedated. She bought lovely clothes and cooked special foods for the children and by all reported observations the children, adopted and foster children, thrived and were happy.

35. The dependency proceeding was resolved with a directed verdict against the agency and the Sampsons' adopted children were returned to their home. A.H. now needs to be returned home as well and Mrs. Sampson's adoption request approved.

36. The allegations which were the basis for the Adoption Application Review Committee's recommendation and the District Administrator's acceptance were not proven and there is a preponderance of affirmative proof that the adoption request should be granted in A.H.'s best interests.

37. A.H. bonded with the Sampsons and their children and the passage of time since his removal from the home has not broken that bond. He still begs to go home to them. The psychologist, Dr. Whyte, who evaluated the Sampsons at the agency's referral, and the adoptions caseworker for A.H. both urge that it is in his best interests to be adopted by Mrs. Sampson. A.H.'s current foster mother, who is herself willing to adopt A.H., testified that A.H. should be adopted by the Sampsons as he loves them and considers them his parents.

38. As established with testimony of the agency's own witnesses, evidence of the accidental, not deliberate, injuries to M., coupled with the one-time improper storage of medications, would not support a decision to revoke the foster home license. Instead, in these circumstances foster parents would be asked to sign a letter of compliance.

39. The foster home license expired in 1998, after the children were removed from the home. In April 1998 Dr. Whyte recommended that the girls, with their complex medical problems and extraordinary care-taking demands, be placed in a therapeutic home where 24-hour care could be provided without the conflicting demands of other obligations.

40. Circumstances in the Sampson household have changed since 1997 and 1998 when Mr. Sampson moved out, and the record does not clearly reflect whether he currently resides in the

    home. The adopted children have grown older and one child may be leaving to go to college. The Sampsons have also grown older. They should be permitted to reapply for a license based on the prior expiration of their license and not based on a revocation action which is not supported in this proceeding.

    CONCLUSIONS OF LAW

    
    

41. The DOAH has jurisdiction in this matter pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

42. Whether the agency is seeking to revoke a foster care license or it is denying renewal of an existing license, it has the burden of proving the allegations upon which its intended action is based. See Department of Banking and Finance v.

    Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). In this case the standard of proof, whether clear and convincing or mere preponderance of evidence, does not matter; the agency failed to meet its burden.

43. The agency failed to prove the allegations described in Findings of Fact numbers 24 and 25, above. The one allegation that was admitted or proven, regarding the improper storage of medications was not proven sufficient to support revocation or denial of the foster care license.

44. Mrs. Sampson affirmatively proved her entitlement to approval of her adoption of A.H. That is, she plainly proved that it is "in the best interests" of this child that he be

    returned to her care immediately and that she be permitted to adopt him. See Wise v. Department of Children and Families, 19 FALR 3341 (Final Order entered January 31, 1997, specifically adopting the conclusion of Administrative Law Judge J. Lawrence Johnston that the "paramount consideration in selecting an adoptive parent is the best interests of the child."

45. Also adopted in Wise was Judge Johnston's conclusion rejecting the agency's argument that the only issue for determination was whether the agency followed its own rules and procedures in rejecting the Petitioners' request to adopt. As described by Judge Johnston, the agency's argument failed to appreciate the purpose of a Section 120.57, Florida Statutes, de

    novo proceeding which is to formulate particularly sensitive administrative decisions, and to expose, inform and challenge agency policy and discretion. [citing State ex rel. Department

    of General Services v. Willis, 344 So. 2d. 580, 590-591 (Fla. 1st. DCA 1977)].

46. The agency in the instant case has modified its argument but is still insisting on what is an essentially appellate review standard described in Section 120.68, Florida Statute:

    The standards [sic] to be applied is whether the Department's denial of [Mrs. Sampson's] adoption application was a reasonable exercise of the Department's discretion in

    accordance with the statute and rule and based upon competent substantial evidence. (Proposed Recommended Order, paragraph 118).

    
    

47. Even assuming that review standard is appropriate, the evidence here does not support the department's intended actions as a "reasonable exercise" of its discretion and the intended actions are not based on "competent substantial evidence."

RECOMMENDATION

Based on the foregoing it is

RECOMMENDED that the agency enter its final order:

1. returning A.H. immediately to Mrs. Sampson;

   
   

2. approving her application to adopt A.H.; and

   
   

3. granting the Sampsons leave to apply for foster home license without any prejudice of the allegations stated in the agency's October 6, 1999, revocation letter.

DONE AND ENTERED this 11th day of August, 2000, in

Tallahassee, Leon County, Florida.

MARY CLARK

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2000.

ENDNOTE

1. Although the parties are reversed in the two cases, the DCFS is referred to herein as Petitioner and the Sampsons are the Respondents.

COPIES FURNISHED:

Raymond R. Deckert, Esquire Jennifer Lima, Esquire Department of Children and

Family Services

4000 West Dr. Martin Luther King, Jr. Boulevard

Tampa, Florida 33614

Leenetta Blanton, Esquire 3407 West Morrison Avenue Tampa, Florida 33629

Virginia A. Daire, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-001928

Orders for Case No: 98-001928