STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 98-3865

)

LUCILLE SIMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on November 17, 1998, in West Palm Beach, Florida, before Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue

West Palm Beach, Florida 33401 For Respondent: No appearance at hearing

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent's license to provide foster care should be revoked for any of the reasons set forth in the Department's revocation letter dated July 23, 1998.

PRELIMINARY STATEMENT

By letter dated July 23, 1998, the Department of Children

and Family Services (DCFS) notified the Respondent of its intent to revoke the Respondent's license to provide foster care.

Grounds for the proposed revocation were specified in the notice. The Respondent timely requested an evidentiary hearing, and the matter was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge. On September 22, 1998, a written Notice of Hearing was mailed to all parties scheduling this case for final hearing in West Palm Beach on November 17, 1998, beginning at 10:00 a.m. Events at hearing and shortly thereafter are described as follows in a post-hearing order issued on December 2, 1998:

The final hearing in this case was held on November 17, 1998, in West Palm Beach, Florida. All parties were provided with advance written notice of the date, time, and location of the hearing. The hearing was scheduled to begin at 10:00 a.m.

Petitioner's counsel and witnesses were present at the scheduled time and place. The Respondent was not present. The commencement of the hearing was postponed until 10:30 a.m. due to the absence of the Respondent. At 10:30 a.m. the hearing commenced and the undersigned received evidence offered by the Petitioner. The hearing concluded at approximately 11:45 a.m. The Respondent never appeared at the hearing.

At approximately 3:45 p.m. on November 17, 1998, the Respondent called the undersigned's secretary. The Respondent stated that she had not been able to find the hearing location because she left her copy of the Notice of Hearing at home. The Respondent also stated that she wanted to speak to the undersigned about the matter.

A telephone conference was scheduled for November 30, 1998. Both parties participated in the conference. During the course of the conference, the Respondent requested that the

hearing be reconvened. The Petitioner objected to that request, primarily on the grounds that the Respondent had not shown good cause for her failure to appear at the hearing and that reconvening the hearing would burden the Petitioner unreasonably by requiring it to spend additional time and money to retry the case.

The Respondent has not shown good cause for her failure to attend the hearing. The Respondent has also failed to identify any evidence she wishes to offer that could reasonably be expected to make a material difference in the outcome of the hearing.

Accordingly, her request to reconvene the hearing will be denied.

In an effort to address some of the Respondent's concerns, the order of December 2, 1998, that denied the request to reconvene the hearing also required the Petitioner to furnish the Respondent with a free copy of the transcript of the hearing.

The order also provided that all parties would be allowed twenty days from the date the transcript was furnished to the Respondent within which to file their respective proposed recommended orders.

A copy of the hearing transcript was furnished to the Respondent on January 4, 1999. On January 25, 1999, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. As of the date of this Recommended Order, the Respondent has not filed any post-hearing documents.

FINDINGS OF FACT

1. At all times material, the Respondent was licensed by the Petitioner to operate a foster home.

2. In conjunction with the placement of foster children in her home, the Respondent signed an Agreement to Provide substitute Care for Dependent Children. In that document, the Respondent agreed to the following conditions, among others:

   2 - We are fully and directly responsible to the Department for the care of the child.

   
   

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   1. - We will not permit the removal of the child from our home, except by an authorized representative of the Department or by instruction of such representative.

      
      

   2. - We will not give the child into the care or physical custody of any other person(s), including the natural parent(s), without the consent of a representative of the Department.

   
   

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   9 - We will accept dependent children into our home for care only from the Department and will make no plans for boarding other children or adults.

   
   

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   11 - We will notify the Department immediately of any change in our address, employment, living arrangements, family composition, or law enforcement involvement.

   
   

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   15 - We will comply with all requirements for a licensed substitute care home as prescribed by the Department.

   
   

3. On May 1, 1997, a family services counselor visited the Respondent's home on a routine visit to check on the status of one of the foster children in the Respondent's home. During that

   visit the counselor observed various hazardous and unsanitary conditions in the home. Several upstairs windows were open. The windows had no screens or other barriers to prevent a child from falling out the window. There was a foul stench in the house.

   Contributing to the stench were numerous plates of decaying food randomly scattered throughout the home. There was a light fixture with a bare bulb and no light shade.

4. On May 1, 1997, the child that the counselor was visiting was seven years-old. The counselor was concerned, for several reasons, about the quality of care the child was receiving. The child was very dirty, and did not appear to have been bathed recently. The child also had a large, obvious ringworm. The counselor asked the Respondent if the child had been taken to a doctor for treatment of the ringworm. The Respondent admitted that she had not taken the child to the doctor and then stated some illogical and frivolous reasons for her failure to seek medical attention for the foster child.

5. During the May 1, 1997, visit, the seven year-old foster child told the counselor that the children in the neighborhood hated him. When asked for details, the foster child described an incident during which, while he was outside, a group of neighborhood children removed all of the foster child's clothing and then urinated on him. When questioned about this incident, the Respondent admitted that she had witnessed the incident. The Respondent's only excuse for allowing the incident to occur was that she had told the foster child not to go outside and he disobeyed her and went outside without permission.

6. On various unspecified occasions during the latter part of 1997 and the first three months of 1998, the Respondent's minor grandson, who sometimes lived with the Respondent and sometimes lived with his mother, engaged in sexual intercourse with one of the female minor foster children in the Respondent's

   home. The Respondent was aware that her grandson had engaged in sexual intercourse with one of her foster children. The Respondent made ineffectual efforts to prevent her grandson from having sexual intercourse with the female foster child. At least three months after discovering this conduct, the Respondent advised personnel of the DCFS for the first time that her grandson had been having sexual intercourse with one of the foster children in the Respondent's home.

7. Around mid-afternoon on January 9, 1998, a police office of the South Bay Police Department went to the Respondent's home at the request of a family services counselor of the DCFS, who was making a routine visit to check on the status of two of the foster children living at that home. On that afternoon, the only adults present were the counselor from DCFS and the police officer. Two of the Respondent's foster children were home without any adult supervision. Those two foster children were thirteen and fifteen years of age, respectively.

8. On January 9, 1998, the Respondent was on a trip outside the State of Florida. She had been gone for at least two days and was not expected to return for several more days. She had one of her foster children with her on the out-of-state trip. The Respondent had not advised the DCFS that she was taking a foster child out of the State of Florida, nor did she have permission from anyone at DCFS to take the foster child out of the State of Florida.

9. Similarly, the Respondent had not advised the DCFS that, while on her out-of-state trip, she was leaving two of her foster children in her home, supposedly under the car and supervision of her adult brother, Leroy Ball. Mr. Ball had not been approved by anyone at DCFS as a temporary substitute caregiver for any of the foster children living with the Respondent.

10. On January 9, 1998, the Respondent's home presented a variety of hazardous and unsanitary conditions. These conditions are perhaps best described in the words of the police officer who was present that day:1

    Upon arriving at the scene I found that the children were left abandon[ed] completely.

    There was no adult supervision whatsoever. I found the interior of the house was in disarray. There were numerous unsanitary conditions within the household, human defecation, rotting food, open garbage cans, knives on the floor, tools, equipment, alcoholic containers that were half empty, strewn all over the house.

    * * *

    
    

    The baby training potty was right at the entry to the kitchen in the living room and it had urine, mold growing on top of the water and looked like defecation inside the bowl itself.

    
    

    * * *

    
    

    There was an overabundance of garbage and clothes. It was just everywhere. It wasn't just one place. It wasn't a bag here, a bag there, piece here, piece there. It was strewn everywhere on every piece of furniture, on the floor. Within every two feet there was garbage of some sort on the floor as if someone had thrown bags of garbage. It was just thrown all over the

    house.

    
    

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    I did look in the kitchen and I took photographs which I submitted and I found food that was half-cooked and half raw sitting there decaying, which was moldy and just rotting in the kitchen.

    
    

    * * *

    
    

    [Referring to a photograph] That was the upstairs bathroom. There was defecation in the water in the toilet. I was unaware if water was actually working in the residence at that time. It didn't appear to me that it was. I would've assumed that somebody would've flushed the toilet if it hadn't (sic) been. It seemed like it had been that way for several days.

11. The two foster children who were left in the Respondent's home while she went on an out-of-state trip did not have a key to the house. Accordingly, they were unable to lock the house.

12. On January 9, 1998, the police officer and the family services counselor interviewed the two foster children. Information provided by the children indicated that the Respondent had been out-of-town for two days and that a man named Leroy Ball was supposed to be taking care of them, but that they had not had any adult supervision during the past two days. Efforts to locate Leroy Ball were unsuccessful. Due to the lack of adult supervision and due to the hazardous and unsanitary condition of the home, the police officer and the family services counselor removed the two foster children from the Respondent's

    home. The police officer took one of the foster children (for whom a warrant was outstanding) to the police station, where the child was fed and then transported to a juvenile detention facility. The family services counselor took the other foster child and delivered the child to another foster home.

13. Later in the afternoon of January 9, 1998, a child protective investigator went to the Respondent's home. The only person present at that time was Leroy Ball, an adult man, who is the Respondent's brother. During an interview with the investigator, Leroy Ball explained that his sister, the Respondent, had to go out of town to a funeral and that during her absence he was supposed to care for the two foster children who had earlier that day been found in the home without any adult supervision. Mr. Ball also explained that he worked each day from approximately 5:00 a.m. until approximately 5:00 p.m. At the time of the interview, Mr. Ball did not know the whereabouts of the two foster children he was supposed to be caring for.

14. Several days later, on January 13, 1998, the child protective investigator interviewed the Respondent. During that interview the Respondent admitted that she had made an out-of- state trip with one of her foster children, and also admitted that she had left two of the foster children at her home, with the understanding that her brother, Mr. Ball, would be supervising them. In subsequent interviews with Department personnel, the Respondent blamed the unsanitary conditions in her

    home on the two children she had left there and on her brother's failure to do what he was supposed to do.

15. The DCFS never consented to Mr. Ball being placed in a temporary role supervising any of the foster children who lived with the Respondent.

16. While licensed to operate a foster home, the Respondent was required to keep the DCFS informed as to who was living in the Respondent's home. While so licensed, there were several occasions on which the Respondent failed to report changes as to who was living in her home. On at least one occasion the Respondent provided the DCFS with false information about who was living in her home.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

18. This case involves the revocation of the Respondent'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).2

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

    (f) "License" means "license" as defined in s. 120.52(9). 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); Section 120.57(1)(h), Florida Statutes.3

20. Subsection (4) of Section 409.175, Florida Statutes, authorizes the DCFS to adopt rules for foster care homes. Such rules have been promulgated and now appear in Chapter 65C-13, Florida Administrative Code. Rule 65C-13.010, Florida

    Administrative Code, titled Substitute Care Parents' Role as a Team Member, includes the following relevant provisions:

    1. Responsibilities of the Substitute Parent to the Child.

       
       

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       (b) Family Care Activities.

       1. Daily living tasks.

          a. The substitute care parents are expected to provide structure and daily activities designed to promote the individual physical, social, intellectual, spiritual, and emotional development of the children in their home.

          
          

          * * *

          
          

       2. Food and Nutrition.

       1. The substitute care parents must provide nutritionally balanced meals and age appropriate snacks.

          6. Health Care.

          
          

          * * *

          
          

       2. The substitute care parents are expected to transport children for medical, dental or other appointments which may be needed.

       
       

       * * *

       
       

       d. The substitute care parents must immediately report to the department any serious changes in the health or mental health of a child.

       
       

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       (4) Responsibilities of the Substitute Care Parents to the Department.

       1. The substitute care parents must notify the department regarding changes which affect the life and circumstances of the shelter or foster family.

       2. The substitute care parents must notify the department at least two weeks in advance of vacations in which the child will be participating.

21. Rule 65C-13.011, Florida Administrative Code, titled Minimum Standards for Licensure of Family Foster Homes, Family Emergency Shelter Homes and Family Group Homes, contains the following relevant provisions:

    (11) Physical Environment.

    
    

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    (b) The home and premises must be free from objects, materials, and conditions which constitute a danger to children.

    
    

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    (13) Interior environment.

    
    

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    (g) The home must be clean and free of hazards to the health and physical well-being of the family.

    
    

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    (17) Medical Care. Substitute care parents must be able to understand and willing to carry out home medical care prescribed by a licensed physician. Medication should not be given without first consulting the physician. . . .

    
    

22. Rule 65C-13.015, Florida Administrative Code, titled Prevention and Management of Sexual Assault in Foster Care, includes the following relevant provisions:

    (2) The following safeguards are to be used by the department on a routine basis:

    
    

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    (c) Within 10 working days of an incident of sexual assault, seduction or exploitation, the perpetrator and the victim must be referred for assessment by a mental health provider to determine the need for therapy.

    
    

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    1. The following reporting procedures are required when a child-on-child sexual assault, seduction or exploitation incident is alleged:

       1. Whoever first becomes aware of the situation is required to report the information to the FPSS Abuse Registry if it is suspected that the alleged victim lacks supervision or has been neglected or abused by the caretaker.

       2. If no report is taken by the abuse registry, all information pertinent to the child-on-child sexual incident will be transmitted to the OPA for protective investigations in the appropriate county as a request for services.

       3. The OPA for protective investigations

    will share all information with their counterpart OPA for foster care to ensure that a service worker will visit the home or facility, assess the situation and provide the follow-up services needed.

23. Section 409.175(8), Florida Statutes, reads as follows:

    
    

    (8)(a) 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.

    3. Noncompliance with the requirements for good moral character as specified in paragraph (4)(a).

    4. Failure to dismiss personnel found in noncompliance with requirements for good moral character.

24. The facts in this case establish that, on more than one occasion, the Respondent engaged in intentional or negligent conduct materially affecting the health and safety of foster children in her home. The facts in this case also establish that, on more than one occasion, the Respondent engaged in conduct that violated one or more of the rule provisions, quoted above, promulgated pursuant to Section 409.175, Florida Statutes. In view of the nature of the violations described in the findings of fact, the Respondent is not an appropriate person to be trusted with the care of foster children, and her license should be revoked.

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that a final order be issued in this case revoking the Respondent's foster home license.

DONE AND ENTERED this 1st day of March, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 1st day of March, 1999.

ENDNOTES

1/ The quoted testimony is from pages 7 through 12 of the transcript of the final hearing. The police officer's testimony was also graphically corroborated by photographs he took that day in the Respondent's home.

2/ This proceeding was not initiated by the Respondent's request for an evidentiary hearing. Instead, it was initiated by the issuance of the notice that the DCFS intended to revoke the Respondent's license. That notice is, as is must be, the functional equivalent of the "administrative complaint" required by Section 120.60(5), Florida Statutes, as a necessary first step in the revocation "of any license." Such a charging document typically asserts facts which the agency believes entitles the agency to the relief it seeks; in this case, the revocation of the Respondent's license. By filing such a charging document, an agency asserts the affirmative of the facts set forth in the document and, in the normal course of events, is the party that bears the burden of proving those facts if they are disputed. In some of its final orders in cases involving similar issues, the DFCS has taken the view that it does not bear the burden of proof in foster home license revocation cases. See Sylvia and Robert Mitchell v. Department of Children and Family Services, DOAH Case No. 97-5477, DCFS rendition No. DCF-98-280-FO (Final Order of Sept. 2, 1998); Mary Mitchell v. Department of Children and Family Services, DOAH Case No. 97-4958, DCFS rendition No. DCF-98-336- Florida Statutes (Final Order Dec. 2, 1998). In the cited final orders, the DCFS has attempted to transmogrify license revocation

cases into license denial cases, relying in part on Section 409.175(2)(f), Florida Statutes, and in part on a strained interpretation of Osbourne Stern (670 So. 2d 932). Neither the cited statutory provision nor the cited court decision provide a logical basis for removing the burden of proof from the agency and placing it on the licensee in a license revocation proceeding.

3/ Section 120.57(1)(h), Florida Statutes, states: "Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. "

COPIES FURNISHED:

Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue

West Palm Beach, Florida 33401

Ms. Lucille Sims Post Office Box 752

South Bay, Florida 33493

Gregory D. Venz, Agency Clerk

Department of Children and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, 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.

Docket for Case No: 98-003865

Orders for Case No: 98-003865