STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATE SHAW, )

)

Petitioner, )

)

vs. ) Case No. 98-5639

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on May 6, 1999, in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kate Shaw

619 38th Street South

St. Petersburg, Florida 33711

For Respondent: Amy V. Archibald, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630 STATEMENT OF THE ISSUE

Whether the Petitioner should be granted a foster home license.

PRELIMINARY STATEMENT

By letter dated November 18, 1998, the Department of Children and Family Services (Department) notified Petitioner

that her application for licensure as a foster home was denied. According to the letter, the basis of the denial was information contained in FPSS Abuse Report No. 92-069954. Petitioner challenged the Department's decision and timely requested a formal hearing. On December 24, 1998, the Department forwarded the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the hearing.

At hearing, Petitioner testified on her own behalf and presented the testimony of Bonita Nixon, Crystal Fishburne, and Ola B. Odoms. Petitioner offered no exhibits into evidence. The Department presented the testimony of Donna DeLuca and Linda Kline, family service counselors with the Department.

Respondent's Exhibits 1 and 2 were received into evidence.

A Transcript of the proceedings was filed on May 12, 1999.

Petitioner and Respondent filed Proposed Recommended Orders.

FINDINGS OF FACT

1. Petitioner, Kate Shaw, applied for a license to operate a family foster home.

2. By letter dated November 18, 1998, the Department notified Petitioner that based on findings in FPSS Abuse Report No. 92-069954, the Department was denying her application for a license to provide foster care. Furthermore, the letter advised Petitioner that she had the "right to request an [a]dministrative [h]earing to review the Department's decision and to request an exemption."

3. FPSS Abuse Report No. 92-069954 named Petitioner as the perpetrator of abuse upon her 13-year-old daughter, Crystal Fishburne (Crysal)/Ms. Fishburne). That report was classified as confirmed in July or August 1992.

4. The incident which was the subject of the abuse report occurred on the evening of July 3, 1992, and was reported to the abuse hotline on that same evening. The Department of Health and Rehabilitative Services, the agency previously responsible for investigating reports of child abuse, assigned a child protection investigator to investigate the subject report.

5. On July 4, 1992, the investigator assigned to the case went to Petitioner's home and interviewed Petitioner and her daughter, Crystal. During the interviews, both Petitioner and her daughter told the investigator that Petitioner had hit Crystal with an extension cord the prior evening.

6. Welts or marks were left on Crystal's legs, arms, and back as a result of Petitioner's hitting her. As a part of the investigation, these marks were photographed. However, no medical examination was ever conducted.

7. On July 4, 1992, after the investigator interviewed Petitioner and Crystal, she tried to take Crystal to the Family Services Program for a cooling-off period, but Crystal refused to go.

8. After the investigation, an abuse report was prepared finding that Petitioner had hit Crystal several times with an

   extension cord leaving linear and looped marks on the daughter's legs, arms, and back.

9. Petitioner has never denied that she hit Crystal with an extension cord on the evening of July 3, 1992. However, during the investigation and at the hearing, Petitioner disputed two statements that Crystal made to the investigator on July 4, 1992. First, Crystal reported that Petitioner had hit her with an extension cord on one other occasion. Second, with regard to the July 3, 1992, incident, Crystal stated that her step-father had held her down while her mother hit her. At hearing,

   Ms. Fisburne (Crystal) provided credible testimony that the aforementioned statements were not true, but were made only because she was angry and wanted to get away from her mother.

10. At the time of the July 1992 incident and during the two years prior thereto, Crystal was a difficult child who refused to follow Petitioner's directions, did whatever she wanted to do, and threatened to call the police if Petitioner "did anything" to her. Crystal exhibited numerous behavior problems. Crystal became violent with Petitioner; routinely skipped school; left home for days at a time; and stole Petitioner's car twice within a one-month period. The first time Crystal stole Petitioner's car, she kept it for one day; the second time Crystal stole the car, she kept it three days. When Crystal ran away from home, she would often return to Petitioner's house during the day when no one was at home and

    break in and steal food and money. Also, in one instance, Crystal broke into someone else's house.

11. On the day of the incident, Petitioner was "pushed to the limit" and resorted to the use of corporal punishment as a means of redirecting her daughter's behavior. Petitioner expressed regret about hitting her daughter with an extension cord. However, she believed that corporal punishment was appropriate given the seriousness of Crystal's behavior, the length of time Crystal had been exhibiting this behavior, and the ineffectiveness of other disciplinary methods, such as placing Crystal on restrictions and giving her extra chores to perform.

12. Prior to the July 3, 1992, incident, Petitioner had sought help in dealing with Crystal's behavioral problems from various community resources. At the suggestion of a school counselor, Petitioner arranged for counseling for Crystal. However, after several sessions, the counseling was discontinued because Crystal was uncooperative. In Crystal's words, referring to the counselor, "I didn't want to talk to the man." When Crystal ran away from home, Petitioner contacted the Sheriff's Office but was told that it could provide no assistance because there was no law against a child running away from home.

    However, Petitioner was told by the Sheriff's Office that since Crystal was a minor, whenever she came home, Petitioner would have to allow her to return. Finally, during one or more of Crystal's episodes, Petitioner attempted to take her to the

    detention center for a 72-hour cooling-off period. These efforts were likewise unsuccessful because the detention center refused to accept Crystal.

13. Other than the incident referred to in the FPSS Abuse Report No. 92-069954, Petitioner has not been the subject of an abuse report.

14. Since the July 1992, Petitioner has been employed in several jobs that involve working with children. She was employed as a house parent in a home for teenage mothers and their babies; a back-up parent for the Department of Juvenile Justice to children who were removed from their home; and a substitute teacher.

15. Despite the discrepancies in statements made by Petitioner and her daughter and in FPSS Abuse Report

    No. 92-069954, there is no evidence that Petitioner requested a hearing to have the abuse report expunged or amended as required in Section 415.504(4)(d)1.b., Florida Statutes (1991). Because the report was never challenged, FPSS Abuse Report No. 92-069954 remains and is properly deemed a confirmed report of abuse.

    Furthermore, there is no indication that Petitioner ever applied for or was granted an exemption from disqualification as provided in the Florida Statutes.

16. In light of the confirmed report of abuse naming Petitioner as the perpetrator of abuse against a child and in absence of the Department's granting an exemption from

    disqualification, the Department properly found that Petitioner failed the required screening and thus, properly denied her application for a foster home license.

    CONCLUSIONS OF LAW

    
    

    
    

17. 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.

18. Section 409.175(1)(a), (5)(h), and (8), Florida Statutes, provides in pertinent part, the following:

(1)(a) The purpose of this section is to protect the health, safety, and well-being of all children in the state who are cared for by family foster homes, residential child- caring agencies, and child-placing agencies by providing for the establishment of licensing requirements for such homes and agencies and providing procedures to determine adherence to these requirements.

* * *

(5)(h) Upon determination that the applicant meets the state minimum licensing requirements, the department shall issue a license without charge to a specific person or agency at a specific location. A license may be issued if all screening materials have been timely submitted; however, a license may not be issued or renewed if any person at the home or agency has failed the required screening.

* * *

(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 ground for denial, suspension, or revocation of a license:

1. An intentional act 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.

1. Section 409.175(2)(k), Florida Statutes, defines the term screening as follows:

   (k) "Screening" means the act of assessing the background of personnel and includes, but is not limited to, employment history checks as provided in Chapter 435, using level 2 standards for screening set forth in that chapter.

   
   

2. As part of screening applications for foster home licenses, the Department utilizes information in the central abuse hotline and the Department's activated information system as authorized by Section 39.201(6), Florida Statutes.

3. Petitioner, as the party seeking licensure as a family foster home under Chapter 409, Florida Statutes, has the burden of establishing by an entitlement to licensure, that the Department had erred in denying them licensure of a family foster home. Department of Banking and Finance, Division of Securities and Investor Protection vs. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996); Florida Department of Transportation vs. J. W. C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). The evidence clearly establishes that Petitioner has failed to meet her burden in this regard.

4. Here, the evidence established that Petitioner is named as the perpetrator of an abuse against a child in FPSS Abuse

   Report No. 92-069954. This finding resulted in the Department's concluding that Petitioner failed the required screening necessary for licensure and properly denied her application.

5. While an abuse report may not necessarily be a permanent bar to Petitioner's being granted a foster home license, it is a proper basis for denial absent evidence that Petitioner has been granted an exemption from disqualification or that Petitioner successfully challenged the abuse report.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's application for licensure as a family foster home.

DONE AND ENTERED this 29th day of July, 1999, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

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 29th day of July, 1999.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk

Department of Children and Family Services 1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel

Department of Children and Family Services 1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

Kate Shaw

619 38th Street South

St. Petersburg, Florida 33711

Amy V. Archibald, Esquire Department of Children and

Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

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: 98-005639

Orders for Case No: 98-005639