vs. ) Case No. 00-4347
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge, Fred L. Buckine, held a formal hearing in the above-styled case on February 14, 2001, in Pinellas County, Largo, Florida.
For Petitioner: Keith J. Ganobsik, Esquire
For Respondent: Thomas E. Todd, Esquire
Thomas E. Todd, P.A. 7617 Little Road
The issue is this case is whether revocation of Respondent's Foster Care license privilege for his past and present conduct, determined by the Department of Children and
Family Services (hereinafter Agency) to be inappropriate, was proper under Section 409.175, Florida Statutes.
By letter dated August 18, 2000, Petitioner informed Respondent, Stanley Thibodeau (hereinafter "Thibodeau"), that his foster care home license privilege had been revoked. The revocation letter, in pertinent part, stated:
This letter is to inform you that your foster home license is hereby revoked. This action is taken as a result of information divulged by you to the Department, which had not been shared with licensing counselors during your training classes and subsequent home study. The revelation established that you left the State of Washington with an unrelated minor child without parental consent and obtained false identification for him and yourself. [Y]ou supplied written documentation of business enterprises involving fantasy videos that you considered and discussed with in-home therapists.
Thibodeau challenged the specific content and innuendoes contained in the revocation letter and on September 7, 2000, filed for a Formal Hearing. On October 24, 2000, the Agency referred the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a Formal Hearing. The hearing was scheduled to be held on
January 25, 2001, but was continued until February 14, 2001, upon granting of Petitioner's Motion for Continuance.
At the final hearing, the Agency presented the testimony of six witnesses and submitted two exhibits, which were received into evidence. Mr. Thibodeau testified on his own behalf, presented testimony of seven additional witnesses, and submitted four exhibits, which were received into evidence.
Mr. Thibodeau's composite exhibit number four, three videotapes, was received into evidence over objection of the Agency.
The Agency did not order a transcript of the proceeding.
The Proposed Recommended Orders submitted by both Petitioner and Respondent were taken into consideration.
Under Section 409.175, Florida Statutes, the Department of Children and Family Services is the State Agency responsible for evaluating, qualifying, licensing, and regulating family foster care homes.
On or about November 5, 1999, the Agency, after
Mr. Thibodeau's successful completion of the Agency's evaluation and qualifying procedures, determined Mr. Thibodeau to be of good moral character. At all times material to the application process, Mr. Thibodeau answered completely and truthfully each question contained on each standard application form and other documents presented to him by the Agency during the foster care
home application process. Based upon its determination, the Agency granted Provisional Certificate of License,
No. 1999-110-002, for Substitute Family Home care privilege to Mr. Thibodeau. Thereafter, the Agency placed three minor children in Mr. Thibodeau's home: two teenaged brothers, David
M. and Daniel M., and seven-year-old Steve.
After an unspecified period of time together, bonding began to develop between the brothers, Daniel and David, and
Mr. Thibodeau. As a result of a mutual agreement, Mr. Thibodeau submitted an adoption application to the Agency to become the adoptive parent of the brothers David M. and Daniel M. At all times pertinent hereto, Mr. Thibodeau answered completely and truthfully each question contained in the standard application forms and other documents presented to him by the Agency during the adoption application process.
Ms. Georgia Alezras, trainer for the Model Approach to Partnership in Parenting (MAPP) classes and Mr. Kelvin Birdsell, family therapist and continuity specialist, made a home-study visit to the Thibodeau residence at some time between early July and August 15, 2000. Mr. Birdsell testified that he confined his conversations to the brothers, David M. and
Daniel M. during the visit. Mr. Birdsell further testified that his conversations with the brothers were separate and away from
the presence and hearing of Ms. Alezras and Mr. Thibodeau, who conversed privately.
On July 26, 2000, after Mr. Thibodeau submitted his adoption application, and after the home study visit by
Ms. Alezras, the Agency received a confidential telephonic abuse report, Petitioner's exhibit number one.1 The abuse report contains an interpolation of the private conversation between Ms. Alezras and Mr. Thibodeau during the earlier home-study visit.
Ms. Carolyn Olsen, Family Counselor Supervisor, testified that Ms. Georgia Alezras reported her private conversation with Mr. Thibodeau to her Agency supervisors.
The Agency's interpolation of the Alezras-Thibodeau conversation formed the factual allegations contained in the Agency's
August 18, 2000, revocation letter.
Sergeant Hagerty, Pasco County Sheriff's Office, testified that she and Sergeant O'Conner investigated the abuse allegations, consisting solely of the Agency's interpolation of Ms. Alezras' earlier and prior conversation with Mr. Thibodeau, by checking with authorities in Washington and checking with the National Criminal Information Center (NCIC) with negative results. The removal of the children from Mr. Thibodeau's home was based upon a joint decision to be safe and take a preventative approach in this matter.
Petitioner's exhibit number two, a composite of eight letters, contained a "Closing of Foster Home For Children" report form, with a "foster home closing date" of August 18, 2000, and the caseworker and supervisor's signature on the date of August 22, 2000. The report, under "reason for closing" heading, contains the following comments:
[H]is license was revoked because he recently divulged information about his past, that, had we known these facts prior to licensing, would have disqualified him to act as a foster parent---namely, he stated that some years ago he left the state of Washington with an unrelated male child without parental or state permission and lived with him for years under false identification.
Ms. Georgia Alezras did not testify. Mr. Thibodeau's testimony is the only evidence of the private conversation with Ms. Alezras. Mr. Thibodeau's recollection of his responses to Ms. Alezras' questions was:
[I]n 1975 he moved to the State of Washington; in 1976-77 he met Daniel L.; in 1976-77 he left the State of Washington and moved with Daniel to Pennsylvania where Daniel enrolled in school using his Washington school records; Daniel's mother visited them in Pennsylvania and maintained contact by telephone; Daniel, at age nineteen returned to Washington. He used a friend's birth certificate to secure his Pennsylvania driver's license. His video business2 considerations were subsequently dismissed and he advised
the Agency of his decision by letter to his caseworker.
Ms. Carolyn Olsen, Agency Representative, testified that one member of every MAPP team always asks a general, catchall question of every [foster care parent] applicant: "Is there anything else we need to know [about you], please tell us, [because] we will probably find out?" Ms. Olsen's candor and purpose comes into question on this point. She was not present during the Alezras-Thibodeau private conversation. Ms. Olsen does not know the identity of the team member who would have asked her catchall question nor does she know of a rule, guideline, or checklist requiring that specific question to be asked of every foster care license applicant, and there was no corroboration of her testimony.
The Agency presented no evidence in support of its allegation that during the application process, its failure to inquire and Mr. Thibodeau's failure to disclose activities 20 years earlier in his life resulted from negligence or from the malicious intent of Mr. Thibodeau, and materially affect the health and safety of the minor children in his foster care.
The Agency has failed to establish that Mr. Thibodeau left Washington with an unrelated minor child without parental consent and obtained false identification for the child. While it is true that Mr. Thibodeau "left Washington with an unrelated
minor child," the Agency produced no evidence that his leaving was "without [minor child's] parental consent." Agency's investigators were unable to make contact with either the child or his mother. No investigation was made of the State of Washington's Motor Vehicle Department. No contact was made with the Pennsylvania authorities. Assuming argunendo, the Agency intended upon establishing this element by "an admission by Mr. Thibodeau"; they presented no evidence Mr. Thibodeau, in
fact, uttered words to the effect of or acknowledged the comment "without parental consent."
The undisputed evidence is Mr. Thibodeau's testimony that the minor child's mother not only approved of the child leaving Washington with him, but she also visited them in Pennsylvania and had telephone conversations with her child during his stay there. On this issue the Agency failed to carry its burden by clear and convincing evidence.
Mr. Thibodeau admitted his use of another's birth certificate to secure a Pennsylvania driver's license more than
20 years ago. Since that time, Mr. Thibodeau's conduct, foster care parenting skills, helping problem young boys, and good moral conduct has been, as testified by the several witnesses, exemplary.
CONCLUSIONS OF LAW
The Division of Administrative Hearing has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.
Petitioner is the state agency responsible for evaluating, qualifying, licensing and regulating Foster Care Parents and Foster Care Homes, under Section 409.175, Florida Statutes, which provides in pertinent part:
(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.
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(2)(e) "Family foster home" means a private residence in which children who are unattended by a parent or legal guardian are provided 24-hour care. Such homes include emergency shelter family homes, family foster group homes, and specialized foster homes for children with special needs. A person who cares for a child of a friend for a period not to exceed
90 days, a relative who cares for a child and does not receive reimbursement for such care from the state or federal government, or an adoptive home which has been
approved by the department or by a licensed child-placing agency for children placed for adoption is not considered a family foster home.
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(f) "License" means "license" as defined in Section 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 entitlement. This privilege must guide the finder of fact or trier of law at any administrative proceeding or court action initiated by the department.
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(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 the level 2 standards for screening set forth in that chapter.
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(5)(b) Upon application, the department shall conduct a licensing study based on its licensing rules; shall inspect the home or the agency and the records, including financial records, of the agency; and shall
interview the applicant. The department may authorize a licensed child-placing agency to conduct the licensing study of a family foster home to be used exclusively by that agency and to verify to the department that the home meets the licensing requirements established by the department.
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(7)(b) The department shall investigate complaints to determine whether a home or agency is meeting the licensure requirements. The department shall advise the home or agency of the complaint and shall provide a written report of the results of the investigation to the licensee.
(8)(a) The Department may deny, suspend, or revoke a license.
Any of the following actions by a home or agency or its personnel is a ground for denial, suspension, or revocation of a license:
An intentional or negligent act materially affecting the health or safety of children in the home or agency.
A violation of the provisions of this section or of licensing rules promulgated pursuant to this section.
Noncompliance with the requirements for good moral character as specified in paragraph (4)(a).
This case involves the revocation of Mr. Thibodeau's family foster care license privilege. The party asserting the
affirmative of an issue before an administrative tribunal has the burden of proof. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
The Department is required to prove the allegations contained in its complaint (August 18, 2000, revocation letter) by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, revocation of foster care license, the Agency has the burden of proving the allegations upon which its actions were based. See Department of Banking
and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Section 120.57(1)(j), Florida Statutes. ("Finding 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, and shall be based exclusively on the evidence of record and on matters officially recognized.") In this case the agency failed to meet its burden by the clear and convincing standard.
Based upon the record, it is found as fact that the Agency's position in this matter is that its prior evaluation, determination, and qualifying approval of Mr. Thibodeau's foster care application would not have been granted had he told them during the process, without being asked, of his initial encounter of rendering help to a troubled youth more than 20 years earlier. By not doing so, the Agency assumed
Mr. Thibodeau violated their application process [past conduct], thus rendering the present revocation appropriate to address the past wrong. It is a basic tenet of common law pleading that "the allegata and probata must correspond and agree." See Rose v. State, 507 So. 2d 630 (Fla. 5th DCA 1987).
The Agency's presentation of Ms. Olsen's rebuttal testimony that someone on the MAPP team "always" asks a general catchall question reveals the internal weakness of its position and falls short of the intended mark. The credible evidence shows that at all times material hereto, Mr. Thibodeau complied with every request and completed every application document provided him, attended every application class session, and answered truthfully and completely every question asked of him. The Agency failed to prove by clear and convincing evidence that Mr. Thibodeau's conduct was an "intentional" or "negligent" act that materially affected the health or safety of children in his foster home.
The evidence in the record does not support the allegation of "leaving a state with an unrelated minor child without parental consent." While it is true that Mr. Thibodeau "left a state with an unrelated minor child," the Agency produced no evidence that his leaving was "without [minor child's] parental consent." No contact was made with either the child or his mother. No investigation was made of the State of
Pennsylvania school system. No investigation was made of the State of Washington's Motor Vehicle Department for the child's location. The Agency offered not one scintilla of evidence in support of the "without parental consent" element of its allegation. Assuming arguendo, the Agency intended upon establishing this allegation by "an admission by Mr. Thibodeau"; they presented no evidence Mr. Thibodeau, in fact, uttered or acknowledged those exact words, "without parental consent."
The undisputed evidence is Mr. Thibodeau's testimony that the minor child's mother not only approved of the child leaving the State of Washington with him, but she also visited them in Pennsylvania and had telephone conversations with the child during his stay there. On this issue the Agency failed to carry its burden of proof by the clear and convincing evidence standard.
Turning to the next allegation that Mr. Thibodeau "obtained false identification for [the minor child] him." Again, the Agency presented not one scintilla of evidence in support of this allegation. Reliance upon admissions made by Mr. Thibodeau is here again misplaced. The person to whom such admissions, if any, were made did not testify, and there was no corroboration of the contents of Mr. Thibodeau's alleged "revelations" made to Ms. Alezras. cf. Florida State Board of Dental Examiners v. Graham, 187 So. 2d 104 (Fla. 3rd DCA 1966).
The only evidence is Mr. Thibodeau's testimony that the minor child enrolled in school in Pennsylvania using his State of Washington school records for identification. On this issue the Agency has failed to carry its burden of proof by the clear and convincing evidence standard.
The Agency's next allegation, "business enterprises involving fantasy videos that you considered and discussed with in-home therapist," is unsupported by evidence of what constitutes "inappropriateness." While it is true that
Mr. Thibodeau did "consider and discuss fantasy videos business with the therapists," it is likewise true that he subsequently wrote a letter to his caseworker informing the Agency that he had discarded that idea. First, the Agency offered no evidence as to the content of the videos that were determined "inappropriate." Second, Subsection 409.175(8)(b)1, Florida Statutes, does not define "inappropriate" and no evidence was offered by which the undersigned can assess the Agency's interpretation of an undefined term. Assuming arguendo, the content of the videotapes were "inappropriate" for some purposes, the Agency offered no evidence to show Thibodeau's consideration and discussion of a fantasy video business enterprise materially affected the safety and health of the children in the foster care home. On this issue the Agency
failed to carry its burden of proof by the clear and convincing evidence standard.
The next allegation, "the inappropriateness of your past and current behavior," is without foundation in fact. The record contains no evidence offered by any Agency witness regarding specific words uttered by or specific moral conduct engaged in by Mr. Thibodeau the Agency determined "past" and "inappropriate" or "current" and "inappropriate." The only evidence of record on this issue is Mr. Thibodeau's testimony that he offered Brenda Allen an opportunity to view the videos he and the brothers, David M. and Daniel M., produced and
Ms. Allen refused to do so. Should one assume that the three videos contained "inappropriate" subject matter and content, the Agency offered no evidence to demonstrate how such "inappropriateness" materially affected the safety and health of the three children in his foster care home. On this issue the Agency failed to carry its burden of proof by the clear and convincing evidence standard.
Mr. Thibodeau admitted his use of another's birth certificate to secure a Pennsylvania driver's license more than
20 years ago. The record is void of evidence to demonstrate how the morality of that single incident materially affected the safety and health of the three children in his foster care home.
While a foster care license is a privilege and the revocation of that privilege is discretionary, exercise of that discretion should not be without some basis in fact and in law. Subsection 409.175(8)(b)1, Florida Statutes, grants the Agency the discretion to select those matters within its considerable expertise to be "inappropriate." After exercising its discretion, the Subsection 8(b)(1) of the Statute imposes the requirement that the Agency shall demonstrate that its discretionary selection had a "material" effect on the health and safety of the children in the foster care home. The Agency presented no clear and convincing evidence that Mr. Thibodeau's past and present conduct "materially" affected the safety and health of the children in the foster care home, and failed to carry its burden of proof.
RECOMMENDED that the Department of Children and Family Services enter a final order reinstating to Stanley Thibodeau his foster care home license privilege.
DONE AND ENTERED 21st day of March, 2001, in Tallahassee, Leon County, Florida.
FRED L. BUCKINE
Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2001.
1/ Petitioner's exhibit number 1. This report contains hearsay's statements, assumptions, conclusions and unsupported allegations from persons known and unknown. None of the allegations contained therein were substantiated after investigation by law enforcement. Accordingly it was given no evidentiary consideration. As a basis for removal of the children it served well. As a basis for revocation it did not.
2/ All parties viewed Respondent's exhibit number 4, the three videotapes, at the hearing and were given an option to respond in their respective Proposed Recommend Orders. Based upon the undersigned's viewing, there was nothing that could remotely be considered "inappropriate" about the content under the reasonable standard. They were as Mr. Thibodeau described them.
Keith J. Ganobsik, Esquire Department of Children and
Thomas E. Todd, Esquire Thomas E. Todd, P.A.
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.
