STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent, )

)

vs. ) Case No. 98-4134

)

KRISTIE (HUGGINS) PFINGSTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on February 2-3, 1999, in Lake Wales, Florida.

APPEARANCES

For Respondent: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

For Respondent: Raymond A. Goodwill, Jr., Esquire

107 Avenue A, Northwest Post Office Box 2334

Winter Haven, Florida 33883 STATEMENT OF THE ISSUE

Should Respondent's family foster home license be revoked, suspended, or otherwise disciplined based on the facts alleged in the Notice of Denial dated August 27, 1998, as amended?

PRELIMINARY STATEMENT

By a Notice of Denial dated August 27, 1998, as amended, the Department of Children and Family Services (Department) advised Respondent that her license as a foster home had been revoked based on Section 409.175(8), Florida Statutes, and Rule 65C-13.011, Florida Administrative Code. The grounds for the revocation was Respondent's alleged violation of

Rules 65C-13.010(1)(b)1.c., 65C-13.009(1)(e)10.,

65C-13.010(4)(j), and 65C-13.010(4)(g), Florida Administrative Code. The Department further alleged that pursuant to

Section 409.175(8)(b)1., Florida Statutes, Respondent's violation of those rules created an unsafe environment for the foster children. By letter dated September 1, 1998, Respondent denied the allegations and requested an administrative hearing. By Notice dated September 17, 1998, the Department referred the matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, the Department presented the testimony of Desiree Ann Smith, Mary Jordan, Vicky Barron, Evelyn Lamison, Dorothy Jean Purdy, and Patrice (Thigpen) Bryant. The Department’s Exhibits numbered 1-3 were received as evidence. Respondent testified on her own behalf and presented the testimony of Mary Jordan, Inez Byrd, Sally Jo Harshman, Vicky

Richmond, and Carolyn Scurry. Respondent's Exhibits numbered 1-2 were received as evidence.

A Transcript of this proceeding was filed with the Division on February 22, 1999. The Department timely filed its proposed recommended order. Respondent elected not file a proposed recommended

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida charged with the responsibility of licensing family foster homes and administering the foster care program as it relates to family foster homes, such as providing foster care supervision and services.

2. On June 16, 1997, Kristie and Robert Huggins (Huggins) of 1403 Chamberlain Loop, Lake Wales, Polk County, Florida, were issued a Certificate of License by the Department to operate a family foster home for children. Subsequently, the Department placed foster care children in the Huggins' home.

3. At all times pertinent to this proceeding, the Department had the children A.M., born December 29, 1996, L.M., born September 30, 1995, and A.C., born October 22, 1996, placed in the Huggins' home.

4. The Notice of Denial dated August 27, 1998, provides in pertinent part as follows: .

   This letter provides notice that your license as a foster home is revoked based on Section 409.175(8), Florida Statutes, and Rule 65C- 13.001, Florida Administrative Code (F.A.C.). The reasons for the revocation are as follows:

   
   

   Vickie Barron, of Nurturing Families Project, Evelyn Liamison [sic], Guardian Ad Litem, and Family Service Counselors Patrice Thigpen and Desiree Smith noted as to Mrs. Huggins' "possessiveness" of the children toward the birth parents. The children were known in the Busy Bee Preschool as the "Huggins Children." The children's belongings were marked as "Huggins." These actions violate Rule 65C-13.010(1)(b)(1)(c)(F.A.C.), which

   states that substitute care parents are expected to help children in their care to maintain a sense of their past and record of their present.

   
   

   Bruises and other injuries noted by Vickie Barron of Nurturing Families Project, Evelyn Liamison [sic], Guardian Ad Litem, and the birth parents. The Busy Bee Preschool also noted bruises and various injuries to the three children on 2/13/98, 2/26/98, 3/2/98. 3/16/98, and 3/23/98. While they resided in the Huggins' home. Since the children have moved from the home, these types of injuries are not occurring. Rule 65C-13.009(e)(10) (F.A.C.), require that foster parents must be able to provide a healthy and safe environment for children and youth and keep them from harm. You have failed to comply with this rule.

   
   

   Desiree Smith, Family Service Counselor, noted that on 3/12/98, when Mrs. Huggins was questioned about a bruise on a male foster child, she told Desiree Smith that the bruise occurred at the daycare. The daycare notes reflected that Mrs. Huggins told the daycare that the bruise was received at the doctor's office. This violates Rule 65C-

   13.010(4)(1)(F.A.C.), which states that the substitute care parents must notify the department immediately of illness or accidents involving the child.

   
   

   You did not notify the department when you and Mr. Huggins separated. This violates Rule 65C-13.010(4)(g), which states substitute care parents must notify the department regarding changes which affect the life and circumstances of the foster family.

   
   

   Your violation of the above mentioned Administrative Rules created an unsafe environment for foster children. Section 409.175(8)(b)1, Florida Statutes.

   
   

   At the beginning of the hearing, the Department made an ore tenus motion to amend certain rule citations in the Notice of Denial.

   The motion was granted and the citations to

   
   

   Rules 65C-13.010(1)(b)(1)(c)(F.A.C.); 65C-13.009(e)(10)(F.A.C.);

   
   

   65C-13.010(4)(1)(F.A.C.); and 65C-13.0010(4)(g)(F.A.C.) were

   
   

   amended to read as follows: Rules 65C-13.010(1)(b)1.c.;

   
   

   65C-13.009(1)(e)10.; 65C-13.010(4)(j); and 65C-13.010(4)(g),

   
   

   Florida Administrative Code, respectively.

   
   

5. Respondent was a very loving, caring and affectionate foster parent and expressed her love, care, and affection with L.M., A. M., and A.C. both in and out of the foster home.

6. From the very beginning, Respondent understood that the ultimate goal for L.M. and A.M. was reunification with their biological parents.

7. At some point in time after A.C. was placed in foster care with Respondent, she expressed a desire to adopt A.C. At this time, Respondent understood (mistakenly) that the goal was

   to terminate the parental rights of A.C.'s biological parents. However, the Department's goal was for reunification and not termination of parental rights. In fact, it is not unusual for foster parents to adopt a child placed in their care when and if the Department terminates the parental rights of the biological parents and offers the child for adoption. Upon learning of the Department's goal of reunification for A.C., Respondent did not pursue the issue of adoption of A.C.

8. Apparently, Vicky Barron and, to some degree, Evelyn Lamison misunderstood Respondent's love, care, and affection for these children as possessive and interfering with the goal of reunification. Vicky Barron is employed by Regency Medical Center, Winter Haven, Florida, supervising the Nurturing Families Program. Evelyn Lamison is the guardian ad litem for L.M. and

   A.M. Patricia Bryant, Family Service Counselor with the Department, described Respondent as being over-protective but did not see Respondent's love, care, and affection for the children as being an attempt to undermine the goal of reunification.

9. Respondent enrolled L.M., A.M., and A.C., in the Busy Bee Preschool. At the Busy Bee Preschool, the children were at times referred to as the "Huggins" children. However, there was no attempt by Respondent or her husband to conceal the fact that the children were their foster children. They were enrolled under their biological parents' name. Some of their belongings were marked "Huggins" and some of the belongings were marked in

   the child's given name. The marking of the children's belongings was for the convenience of the Busy Bee Preschool and not intended as a means to deprive the children of sense of their past or present.

10. Although there may have been some hostility on the part of both the Respondent and the biological parents of the children, there was insufficient evidence to show that Respondent, either intentionally or unintentionally, attempted to interfere, sabotage, or prevent the ultimate goal of reunification of the children with the biological parents, notwithstanding the testimony of Vicky Barron and Evelyn Lamison to the contrary, which I find lacks credibility.

11. Without question, there were bruises, scratches and bug bites on L.M., A.M., and A.C. during their stay at Respondent's foster home. Some of these scratches and bruises occurred in and around Respondent's home, some of them occurred at the Busy Bee Preschool.

12. On at least one occasion (March 12, 1998) A.C. fell while in the doctor's office and bruised his face. This bruise was noted in the Busy Bee Preschool notes, as were other scratches and bruises to the children received at home or at the Busy Bee Preschool. The incident of March 12, 1998, was documented by the doctor's office. In fact, it became the basis of an abuse report filed against Respondent which was determined to be unfounded. This alleged abuse was not reported until

    June 4, 1998. There is no evidence to support the allegation that Respondent told Desiree Smith that the bruise to A.C.'s face which occurred at the doctor's office occurred at the Busy Bee Preschool.

13. Another abuse report was filed against Respondent concerning L.M. and A.M. on March 24, 1998, which was closed as unfounded.

14. Vicky Barron testified that she was the reporter in both abuse reports. She also testified that she disagreed with the Child Protective Investigator's finding that there was no evidence of abuse. Her disagreement was such that she contacted the Investigator's supervisor in an attempt to have the finding reversed.

15. Based on the testimony of the Department personnel and the Busy Bee Preschool personnel who testified at the hearing, it is clear that these bruises, scratches, and bug bites were no more or no less severe than bruises, scratches, and bug bites experienced by other active children the age of L.M., A.M., and A.C., notwithstanding the testimony of Vicky Barron and, to some degree, Evelyn Lamison to the contrary, which I find lacks credibility.

16. Although there is no allegation concerning the Respondent's home, it is clear that Respondent kept her home neat, clean, and safe (although there was some clutter at times).

    However, when a matter concerning the children's safety was brought to Respondent's attention it was corrected.

17. There is insufficient evidence to show that Respondent failed to provide a healthy and safe environment for L.M., A.M., and A.C. and to keep them from harm.

18. While there may have been problems between Kristie Huggins and Eric Huggins, Kristie Huggins did not anticipate a separation until April 23, 1998, when Eric Huggins failed to return home after his trip out of town. Through Patty Fazzino, Respondent advised the Department's office in Tallahassee, Florida, of the separation. Subsequently, the Department's Tallahassee office advised the Lakeland office. Although Respondent did not directly notify the Department's local foster care licensing personnel, the Respondent did not intentionally or unintentionally fail to notify the Department of her separation from Eric Huggins.

19. Likewise, Respondent did not fail to immediately notify the Department of any illness or accidents concerning L.M., A.M., and A.C. which required department notification.

20. It appears from the testimony of Mary Jordan that Respondent has completed the necessary hours of training for relicensure but would need to complete some paper work.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this

    proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

22. Sections 409.175(8)(a) and (b)1.2., Florida Statutes provide 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.

23. Rule 65-13.009(1)(e)10., Florida Administrative Code provides as follows:

(e) The goal of the Group Preparation and Selection Program is to prepare individuals and families to make an informed decision about becoming foster or adoptive families. The decision is made with the department and is based on the capability and willingness to take on the 'role' and develop the skills needed to foster or adopt. Foster and adoptive families who make good decisions and grow in their new roles work best with the department, birth families and others. These partnerships help children and youth have a stability and permanence with a family. As successful foster and adoptive parents you must be able to:

* * *

(10) Assure health and safety. Provide a healthy and safe environment for children and youth and keep them free from harm.

24. Rules 65C-13.010(1)(b)1.c.,(4)(g)(j), Florida Administrative Code provide as follows:

(1) Responsibilities of the Substitute Parent to the Child.

* * *

(b) Family Care Activities.

* * *

c. The substitute care parents are expected to help children in their care to maintain a sense of their past and a record of their present.

* * *

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

* * *

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

* * *

(j) The substitute care parents must notify the department immediately of illness or accidents involving the child.

25. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349d (Fla. 1st DCA 1977).

The Department must prove the material allegations of the Amended Notice of Denial by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Section 120.57(1)(h), Florida Statutes. The evidence must not only be clear but must also be convincing. The Department's evidence in this case is neither clear nor convincing. However, assuming arguendo that the level of proof was by a preponderance of the evidence, the Department has also failed to meet that burden of proof.

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 granting Respondent Kristie (Huggins) Pfingston her family foster care license.

DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999.

COPIES FURNISHED:

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

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Raymond A. Goodwill, Jr., Esquire

107 Avenue A, Northwest Post Office Box 2334

Winter Haven, Florida 33883

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: 98-004134

Orders for Case No: 98-004134