STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES AND GAIL MAYES,

Petitioners,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 00-2935

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RECOMMENDED ORDER FOLLOWING REMAND

A formal hearing following remand was held in this case on April 15, 2002, in Tallahassee, Florida, before the Division of Administrative Hearings by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioners: Alan I. Mishael, Esquire

Alan I. Mishael, P.A. 2850 Sheridan Avenue

Miami Beach, Florida 33140

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue is whether Petitioners' use of a harness and lock to control A.B.'s behavior violated Section 409.175(8)(b)1.,

Florida Statutes, and/or Rules 65C-13.010(1)(b)5.a., 65C-13.010(1)(b)5.c., and 65C-13.010(1)(b)5.e., Florida

Administrative Code.

PRELIMINARY STATEMENT

On October 20, 2000, the undersigned issued a Recommended Order in this case. On December 6, 2000, Respondent Department of Children and Family Services (Respondent) issued a Final Order Denying Licensure, incorporating by reference and adopting the Findings of Fact and Conclusions of Law set forth in the Recommended Order.

Petitioners James Mayes and Gail Mayes (Petitioners) appealed the Final Order Denying Licensure to the District Court of Appeal of Florida, First District. On December 21, 2001, the Court issued an Opinion in James Mayes and Gail Mayes v. Florida

Department of Children and Family Services, 801 So. 2d 980 (Fla. 1st DCA 2001). The Court stated that the Administrative Law Judge must make specific factual findings, based on record evidence, indicating how Petitioners' use of a harness and a door lock violated the statutes or rules or otherwise justified denial of Petitioners' application for a foster care license.

The Court affirmed in part, reversed in part, and remanded for further findings, stating that the Administrative Law Judge could receive additional evidence on these questions if needed.

On December 28, 2001, the Court issued the Mandate in James Mayes and Gail Mayes v. Florida Department of Children and

Family Services, 801 So. 2d 980 (Fla. 1st DCA 2001).

On January 10, 2002, Petitioners filed a Motion for Summary Final Order with the Division of Administrative Hearings.

On January 15, 2002, Respondent filed a Final Order on Remand dated January 9, 2002.

On January 22, 2002, the undersigned issued an Order on Remand. This Order requested the parties to file a status report, advising whether further evidentiary proceedings were required.

On January 29, 2002, the parties filed a Joint Status Report. The report advised that Respondent requested further evidentiary proceedings and provided mutually convenient hearing dates.

On January 30, 2002, the undersigned issued a Notice of Hearing. The notice scheduled the hearing for March 18, 2002.

On February 1, 2002, Respondent filed a Response to the Mayes' Motion for Summary Final Order. An Order dated February 11, 2002, denied Petitioners' Motion for Summary Final Order.

On February 13, 2002, Respondent filed the Record on Appeal with the Division of Administrative Hearings. The record included a Transcript of the formal hearing on September 25,

2000, and four exhibits, but did not include a transcript of the September 27, 2000, telephone hearing.

On March 5, 2002, Petitioners filed an Agreed Motion to Present Video Teleconference or Telephonic Hearing Testimony of Palm Beach County Witnesses. This request was granted by Order dated March 6, 2002.

On March 6, 2002, the parties filed a Joint Motion to Enlarge Time for Filing Prehearing Stipulation. That same day the undersigned granted the motion.

On March 14, 2002, the parties filed a Joint Motion to Reschedule Hearing Date and Deadline for Filing Prehearing Stipulation. By Order dated March 15, 2002, the hearing was rescheduled for April 15, 2002.

On March 28, 2002, Respondent filed a Motion for Official Recognition. The motion sought official recognition of Rule 4A-60.004, Florida Administrative Code, Section 7.2.1.5 of the

Life Safety Code (2000 edition), and Section 7.2.1.5 of the Life Safety Code Handbook (2000 edition). Petitioners filed a response in Opposition to DCF's Motion for Official Recognition and Motion for Preclusive Discovery Sanctions on April 1, 2002.

On April 1, 2002, Petitioners filed a Motion in Limine for an Order Excluding Evidence Concerning Alleged Violation of Life Safety Codes, Fire Codes and Administrative Code Provisions not

Cited in DCF's June 5, 2000, Denial Letter. Respondent filed a response in opposition to the motion on April 12, 2002.

On April 5, 2002, Petitioners filed a Motion to Enlarge Time for Filing Prehearing Stipulation. An Order dated April 10, 2002, granted the motion.

On April 10, 2002, the undersigned issued an Order advising the parties that all pending motions would be considered after oral argument at the commencement of the hearing.

On April 12, 2002, the parties filed a Bilateral Prehearing Stipulation.

On April 12, 2002, Petitioners filed a Motion to Compel the Production of Documents for In Camera Review and to Place Withheld Documents in the Record under Seal. The undersigned heard oral argument on the motion during the hearing.

Respondent asserted that the motion was untimely and that the documents were not discoverable because they were subject to the lawyer/client privilege set forth in Section 90.502, Florida Statutes. The undersigned accepted the documents in question for in camera review.

The following documents were reviewed in camera: (a) a copy of a memorandum dated April 24, 2000, from Respondent's counsel to Respondent's Operations Program Administrator, Vicki Abrams, with Ms. Abrams' handwritten notes concerning a telephone call with Respondent's counsel; (b) Ms. Abrams'

handwritten notes in September 2000 regarding several conversations with Respondent's counsel; and (c) three drafts of the letter denying Petitioners' application. Respondent's counsel prepared the drafts of the denial letter and participated in a review process that resulted in the denial letter dated June 5, 2000.

Petitioners' Motion to Compel the Production of Documents for In Camera Review and to Place Withheld Documents in the Record under Seal is denied. These documents clearly are entitled to the lawyer/client privilege under Section 90.502, Florida Statutes. Additionally, they provide no information that is relevant to the issue being considered on remand. Under cover of a letter dated May 10, 2002, the undersigned returned the documents to Respondent with directions to maintain them until a final resolution is reached in this case.

After hearing oral argument at the commencement of the hearing, the undersigned denied Respondent's Motion for Official Recognition of Rule 4A-60.004, Florida Administrative Code, Section 7.2.1.5 of the Life Safety Code (2000 edition), and Section 7.2.1.5 of the Life Safety Code Handbook (2000 edition), and reserved ruling on Petitioner's Motion in Limine regarding the same provisions. The rule and code provisions were not relevant standing alone and were never offered in support of expert testimony.

During the hearing, Petitioners presented the testimony of three witnesses. Petitioners offered four exhibits which were accepted into evidence.

Respondent presented the testimony of one witness. Respondent did not offer any exhibits for admission into evidence.

During the hearing, Petitioner's filed a copy of the Transcript from the September 27, 2000, telephone hearing.

A transcript of the April 15, 2002, proceedings was filed on April 15, 2002.

On May 6, 2002, Respondent filed its Proposed Recommended Order on Remand. On May 7, 2002, Petitioners filed an Agreed Motion for a One-Day Enlargement of Time for Filing Petitioners' Proposed Recommended Order and Petitioners' Proposed Recommended

Order.

FINDINGS OF FACT

Based on the record created during the initial hearing on September 25 and 27, 2000, and during the hearing on April 15, 2002, after remand, the following facts are found to supplement the facts set forth in the Recommended Order dated October 23, 2000.

1. Using a harness to restrain a child in a high chair or crib is dangerous because the child could become entangled in the harness, resulting in broken bones or, in the worse case

   scenario, strangulation. In this case, Petitioners used the harness on A.B. in the high chair and the crib without success because, with Petitioners watching, A.B. was able to free himself almost immediately. There is no evidence that A.B. suffered any harm on either occasion.

2. Using a door latch on the outside of a door to keep a child locked in a room with no other egress is dangerous because the child could injure himself without the knowledge of his caretaker. Moreover, in the event of a fire, the child would not be able to get out of the room. In this case, Petitioners used the door latch to keep A.B. in his room on two occasions.

   A.B. was asleep when the door was locked and unlocked. Use of the door latch did not result in any harm to A.B.

   CONCLUSIONS OF LAW

   
   

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

4. Respondent's denial of licensure was based in part on the following allegations: (a) Petitioners used a harness to restrain A.B. in violation of Section 409.175(8)(b)1., Florida Statutes, and Rules 65C-13.010(1)(b)5.a., 65C-13.010(1)(b)5.c., and 65C-13.010(1)(b)5.e., Florida Administrative Code; and

   1. Petitioners used a hook lock device to lock A.B. into his room in violation of Section 409.175(8)(b)1., Florida Statutes,

      and Rules 65C-13.010(1)(b)5.a., 65C-13.010(1)(b)5.c., and

      
      

      65C-13.010(1)(b)5.e., Florida Administrative Code.

      
      

5. The issue on remand is whether Petitioners' use of a harness and lock to control A.B.'s behavior violated Section 409.175(8)(b)1., Florida Statutes, and/or Rules

   65C-13.010(1)(b)5.a., 65C-13.010(1)(b)5.c., and

   
   

   65C-13.010(1)(b)5.e., Florida Administrative Code. James Mayes and Gail Mayes v. Florida Department of Children and Family Services, 801 So. 2d 980 (Fla. 1st DCA 2001).

6. Section 409.175(8), Florida Statutes, states as follows in pertinent part:

   (8)(a) The department may deny, suspend, or revoke a license.

   1. 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.

      
      

7. Rule 65C-13.010(1)(b)5., Florida Administrative Code, provides as follows in pertinent part:

   5. Discipline.

   a. The substitute care parents must discipline children with kindness, consistency, and understanding, and with the purpose of helping the child develop responsibility with self-control.

   * * *

   
   

   c. Substitute care parents should use positive methods of discipline, including the following:

   1. Reinforcing acceptable behavior.

   2. Verbal disappointment of the child's behavior.

   3. Loss of privileges.

   4. Grounding, restricting the child to the house or yard, or sending the child out of the room and away from the family activity; and

   5. Redirecting the child's activity, for example, if a child is playing with a sharp object take the object away, and replace it with a safe toy.

   
   

   * * *

   
   

   e. The substitute care parents must not subject children to cruel, severe, humiliating or unusual punishment, for example, to use soap to wash out the mouth, eating hot sauces or pepper, placing in hot water, kneeling on stones, etc.

   
   

8. Rule 65C-13.010(1)(c)1., Florida Administrative Code, states as follows:

   1. Substitute Parent Responsibilities.

   1. Substitute care parents are expected to work cooperatively with the counselor as a member of a treatment team in seeking counseling, participating in consultation, and preparing and implementing the performance agreement or permanent placement plan for each child.

   
   

9. Petitioners admit that they used the harness and the door latch, each on two occasions. However, they did not use the harness or the door latch to discipline A.B. Instead, Petitioners tried to keep A.B. from jumping out of his highchair

   during mealtime, from climbing out of his crib during naptime, and from entering unsupervised areas of the home while his caretaker was otherwise occupied for brief periods of time.

10. Respondent's rules and statutes do not specifically prohibit using a harness or a door latch as a means to restrain a child. James Mayes and Gail Mayes v. Florida Department of

    Children and Family Services, 801 So. 2d 980, 982 (Fla. 1st DCA 2001). Such specificity is not required where the actions of foster parents violate the existing statutes or rules or otherwise justify denial of a foster care license. James Mayes

    and Gail Mayes, 801 So. 2d at 982. As the Court stated in James Mayes and Gail Mayes, 801 So. 2d at 982, "it is not necessary that the statutes or rules anticipate and explicitly prohibit all possible circumstances of improper treatment of children."

11. In cases where the conduct of a foster parent is not specifically prohibited in the statutes and rules, the conduct must result in actual harm to the child in order for Respondent to use the conduct as a basis for denial of a new foster home license. James Mayes and Gail Mayes, 801 So. 2d at 982. It is insufficient for Respondent to determine that the conduct "could" have resulted in harm. James Mayes and Gail Mayes, 801 So. 2d at 982.

12. On remand, Respondent presented competent evidence that using a harness and door latch presented a "risk of danger"

that "could" have resulted in harm to A.B. There is no evidence that Petitioners' actions did, in fact, materially affect the health or safety of A.B. in violation of Section 409.175(8), Florida Statutes. Additionally, there is insufficient evidence to conclude that Petitioners violated Rules

65C-13.010(1)(b)5.a., 65C-13.010(1)(b)5.c., and

65C-13.010(1)(b)5.e., Florida Administrative Code, in substance. Finally, the record does not support a finding that Petitioners' use of the harness and door lock otherwise justified the denial of a foster home license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Respondent enter a final order granting Petitioners a foster home license.

DONE AND ENTERED this 13th day of May, 2002, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 May, 2002.

COPIES FURNISHED:

Alan I. Mishael, Esquire Alan I. Mishael, P.A.

2850 Sheridan Avenue

Miami Beach, Florida 33140

John R. Perry, Esquire Department of Children and

Family Services

2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949

Paul Flounlacker, 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 204

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: 00-002935

Orders for Case No: 00-002935