STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 00-1952

)

ENNIS AND SHARON CLEMENTS, )

)

Respondents. )

)

RECOMMENDED ORDER

On September 26, 2000, a formal administrative hearing in this case was held in Jacksonville, Florida, before Don W. Davis, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roger L. D. Williams, Esquire

Department of Children and Family Services,

Post Office Box 2417 Jacksonville, Florida 32231-0083

For Respondents: Ennis and Sharon Clements, pro se

1173 Lake Forest Blvd. Jacksonville, Florida 32208

STATEMENT OF THE ISSUE

The issue is whether Ennis and Sharon Clements (Respondents) committed the violations set forth in correspondence of the Department of Children and Family Services (Petitioner); and, if so what penalty should be imposed with regard to Respondents' Foster Care License?

PRELIMINARY STATEMENT

By letter dated April 10, 2000, Petitioner informed Respondents that their foster care license would be revoked effective April 7, 2000.

Respondents disputed the revocation and requested a formal administrative hearing on the matter. Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the final hearing, Petitioner presented the testimony of four witnesses and two exhibits. Respondents testified on their own behalf, as did their son, Shannon.

A Transcript of the final hearing was filed on October 25, 2000. Petitioner filed a Proposed Recommended Order which has been considered in the preparation of this Recommended Order.

Respondents did not file a proposed recommended order and none had been received at the time of preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondents are licensed by Petitioner as foster parents on an annual basis. They were last licensed by Petitioner on August 18, 1999.

2. On or about December 23, 1999, Petitioner's representatives received a telephone call with regard to a minor child in Respondents' custody named D.H. Allegations were made that D.H. had been discovered to have bruises on both arms, his

   back and legs in the course of a visit to the family visitation center. The family visitation center is a facility operated by Petitioner where foster children are brought for visitation with their real parents.

3. A family services counselor in Petitioner's employ investigated the matter and observed the bruises and stripes on D.H.'s body on December 23, 1999, and made an immediate referral of the matter to Petitioner's child protection team. Bruce McIntosh, M.D., is a member of the team. He examined D.H. and determined that the injuries to the child were consistent with being struck many times with a belt and constituted, in his expert opinion, child abuse. Photographs presented at the final hearing and taken in proximity to the examination corroborate Dr. McIntosh's findings.

4. The testimony of the minor child, D.H., at the final hearing establishes that he had been struck several times by Respondent Ennis Clements and Shannon, the teenage son of Respondents, prior to D.H.'s travel to the family visitation center.

5. Prior to licensure, Respondents were told that corporal punishment was not to be used with regard to foster children placed with them by Petitioner. Both Respondents signed forms at the time of their licensure as foster parents, indicating their understanding of this directive from Petitioner.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

7. In accordance with the definition of "License" contained in Section 409.175(f), Florida Statutes, the licensure status previously awarded Respondents by Petitioner does not create a property right and may not be considered to be a professional license. Accordingly, Petitioner need only establish by a preponderance of the evidence a reason sufficient to justify the revocation of Respondents' foster home licensure. In this case, the burden has been met.

8. Rule 65C-13.010(1)(b)5., Florida Administrative Code, unequivocally establishes that foster children may not be subjected to corporal punishment either by the foster parent or another child in the home. To a preponderance, the evidence establishes that such corporal punishment was accorded to the minor child, D.H., by Ennis Clements and his son, Shannon.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered by Petitioner confirming the revocation of Respondents' licensure.

DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 13th day of November, 2000.

COPIES FURNISHED:

Roger L. D. Williams, Esquire Department of Children and

Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Ennis Clements Sharon Clements

1173 Lake Forest Boulevard Jacksonville, Florida 32208

Virginia A. Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services Building 2, Room 204B 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: 00-001952

Orders for Case No: 00-001952