STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK KEESLER AND TAMMY KEESLER,

Petitioners,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-2628

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RECOMMENDED ORDER

A hearing was held pursuant to notice by Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings, on September 19, 2001, in Ocala, Florida.

APPEARANCES

For Petitioner: Frank Keesler, pro se

Tammy Keesler, pro se 12879 Northeast 5th Street

Silver Springs, Florida 34785

For Respondent: Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785

STATEMENT OF THE ISSUE

Whether the Petitioners should be licensed to operate a foster care home?

PRELIMINARY STATEMENT

The Petitioners were denied re-licensure of their foster care home by the Respondent by letter dated March 28, 2001. The letter denying re-licensure included notice to the Petitioners that they could request a formal hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The request for hearing, the notice stated, must comply with the requirements of Rule 28-106.201, Florida Administrative Code.

The Petitioners made a request for formal hearing and the matter was referred on July 1, 2001, to the Division of Administrative Hearings to conduct the formal hearing. The case was noticed for hearing on September 19, 2001, and heard as noticed.

At hearing, the Respondent presented the testimony of Pedro Gomez, Michelle Parr, and Laurel LeLoup; and introduced the Respondent's Exhibits numbered 1 through 5. The Petitioners introduced the Petitioners' Exhibit numbered 1, and the Petitioners' Exhibit numbered 2 (Composite), and presented the testimony of Mary Beth Jones, Cynthia Janson, Ervin Bullock, Connie DeLong, Alan Haney, Tammy and Frank Keesler.

The Respondent was afforded the opportunity to have Pedro Gomez authenticate after the conclusion of the hearing an event report which he had made; however, the Respondent failed to do so and, therefore, that report and testimony regarding it will

not be considered. Neither party submitted post hearing briefs or findings.

FINDINGS OF FACT

1. The Petitioners, Frank and Tammy Keesler, were licensed to operate a foster home. On March 28, 2001, the Respondent advised them by letter that their home would not be re-licensed

   because:

   
   

   "A Florida Abuse(d) [sic] Hotline Information System' report was received on September 9, 2000, alleging Physical Abuse- Bruises/Welts, and Medical Neglect. This report was subsequently investigated and based upon bruising that was observed on a Foster [sic] child in your home, a finding of abuse with bruises/welts was verified.

   Documentation from the Child Protection Team and inconsistent statements from you as to how the child received the bruises supported the verified findings. In addition, there were also some indicators of medical neglect based upon the child being treated for pink eye with another child's medication when in fact, she did not have pink eye.

   
   

   A second Florida Abuse Hotline Information report was received on October 5, 2000, alleging Physical Abuse-Bruises/Welts. This report was subsequently investigated and there were some indicators of abuse with bruises/welts, some indicators of neglect for inadequate supervision-caretaker present, and also inadequate supervision- caretaker absent. These findings were based upon bruising that was observed on a foster child in your home and a conflicting statement from you as to how the bruising occurred.

   Chapter 409.175(8)(a)(b) of the Florida Statutes states that the Department may deny a license if there is an intentional or negligent act materially affecting the health or safety of children in the home.

   Based upon the findings of the two abuse investigations, there is a concern that other foster children may be injured, inadequately supervised or medically neglected if placed in your home."

   
   

2. The letter of denial was the first time the allegations which were the subject of the abuse reports were raised formally with the Petitioners and this proceeding is the first opportunity the Petitioners have had to controvert the allegations made therein and the findings reached by the investigators.

3. The Respondent is seeking to deny an existing license.

   
   

   It had the burden to go forward and to present evidence in support of the allegations set forth in paragraph 1, above.

4. The Respondent called Pedro Gomez, who testified concerning his knowledge of the case. He was not the individual who conducted the investigations; Margaret Miller was the investigator of both incidents. Margaret Miller is no longer employed by the Respondent. Her reports were identified by Gomez, who caused them to be printed out for the hearing, and by Michelle Parr who had originally reviewed the reports made by Margaret Miller. Upon their authentication the reports were received into evidence.

5. Laurel LeLoup testified regarding the determination not to re-license the Petitioners. LeLoup was part of the group who staffed the determination not to re-license the Petitioners. The reasons that they were not re-licensed were the two Hotline Reports referenced in paragraphs 1 and 2, above. Leloup had no direct knowledge of the events which gave rise to the reports or the subsequent investigation.

6. In sum, the only evidence offered of the allegations was the reports, the Respondent's Exhibits numbered 3 and 4. While these reports were properly authenticated as business records of the Department, they are offered primarily in this case to prove the conclusion reached by the investigator. The persons who she interviewed, with the exception of the Petitioners, were not called to testify; the photographs which were taken were not introduced; and the medical professionals who examined the children were not called to testify. The reports on both children of the Child Protective Team were introduced, and received into evidence.

7. Regarding the report of abuse dated October 5, 2000, 2000-156800, the alleged victim was A.W., DOB: July 20, 1998, White Female. The investigator, Margaret Miller, interviewed the Petitioners. The child was examined by the Child Protection Team (CPT). See the Respondent's Exhibit numbered 1. The conclusion reached by the CPT was that the child could have been

   accidentally injured. Their determination was based upon the child's lack of coordination and resultant falls. The Petitioners and others also reported that the child was exceptionally aggressive, fighting with other children, and throwing tantrums during which she threw herself down on the floor striking toys and other objects. The abuse investigation concluded that it could not be determined if there had been abuse. There were no contradictory findings in the report.

8. Regarding the report of abuse dated September 21, 2000, 2000-148332, the alleged victim was K.D., DOB: April 30, 1999, White Female. The investigator interviewed the Petitioners. The child was examined by the CPT. See the Respondent's Exhibits numbered 2 and 4.

9. This investigation arose when respite foster care was arranged for Tammy Keesler, who had been ill. The children were picked up from Keesler by Department of Children and Family staff, who delivered them to another foster parent. The report recites that Tammy Keesler had provided medicine with instructions on administration to staff. When contacted, Tammy Keesler told the respite foster care mother that the doctor had told her to medicate the child with the medicine used on the other children for pink eye.

10. When interviewed by Margaret Miller, Tammy Keesler confirmed that she had taken K.D. with her when she had gone to see her doctor, and her doctor had said that K.D. had pink eye and to use the same medication she was using on the other children who were infected.

11. Regarding the bruising, Tammy Keesler testified at hearing that K.D. was clumsy and fell frequently bruising herself; and that she also fought violently with AW, and both children were bruised all over from these fights. Frank Keesler testified that the children fought constantly. Their testimony was consistent with that of the other witnesses and their statements to the investigator and are very credible.

12. Miller also interviewed workers at the Ft. King Day Care, who reported that they had observed bruises on the children, but that K.D. was clumsy. The workers at day care confirmed that Tammy Keesler had taken K.D. to see Keesler's doctor.

13. Miller's report makes reference to a discussion by telephone with personnel in the licensing section of the Respondent. These personnel stated, "Because of the inconsistent stories and explanations [,] Darnell will interview the Kesslers again." The licensing office advised Miller not to make further placements in the Keesler home until further notice.

14. Notwithstanding the "inconsistent stories and explanations" referred to by the licensing office, the interviews and reported observations of Miller were consistent:

    K.D. was clumsy, K.D. and A.W. fought, and Tammy Keesler took

    
    

    K.D. to the doctor who advised to use the same medicine for the child that she was using with the other children.

15. The CPT examined the K.D. and found numerous old bruises over the child's torso, head, and arms. The CPT was concerned about the old bruises as an indication of physical abuse; however, the child fell in the waiting room and sustained abrasions to forehead and a bruise on the forehead. The issue regarding pink eye was raised with the CPT and presumably the child's eyes were examined. No findings were reported by the CPT regarding whether the child had pink eye or any other problem with her eyes. See the Respondent's Exhibit

    numbered 2.1/

16. Contrary to the conclusion regarding abuse of K.D., as stated above, there is no contradictory information reported in the report concerning the causes of her injuries. The reports are consistent that she was clumsy, fell frequently, and these mishaps caused her injuries. More importantly, the testimony presented by Petitioners at hearing established these facts.

17. Regarding the medication, the child was taken to the doctor and the doctor told Tammy Keesler to medicate the child

    with the same ointment she sued to the other children. A letter of note from the doctor confirms this, along with the statement of Keesler's co-workers.

    CONCLUSIONS OF LAW

    
    

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

1. The burden is upon the Respondent in this case because it is seeking to refuse to re-license the Petitioners to whom it has already issued a license. The information upon which the Respondent seeks to take this action was within its data base, and it was aware or should have been aware of these reports when it licensed the Petitioners. There is no evidence of fraud or concealment by the Petitioners.

2. As stated in the facts, the Respondent did not present any witnesses with first hand knowledge of the alleged acts upon which the reports of abuse were based. The Respondent did not produce its investigator to testify or present her testimony. The Respondent introduced Miller's reports as evidence of the facts reported therein.

3. Although these records are accepted as business records, as business records they can prove the fact that the investigation was conducted, which dates were involved, the people who were interviewed, and the fact that the investigator

   concluded there was abuse in one instance and there was not abuse in the other. However, the investigator's conclusion is not binding upon this forum's determination of the same issue because the Petitioners were not offered a point of entry to challenge that conclusion or present evidence on their side of the issue. The investigator's conclusion was not subject to an adversarial proceeding to test the reliability of that conclusion.

4. In this proceeding, which is the first in which the Petitioners have had the opportunity to controvert the allegations, the Respondent has produced no credible, admissible evidence of the allegations that the Petitioners physically abused or denied appropriate medical care to K.D. or A.W. The investigative report indicates that the children fought, one of them was extremely clumsy and fell, and the other threw tantrums during which she threw herself down on the floor and against whatever was on the floor at the time. The reports of their conduct were extremely consistent, and wit the testimony at hearing.

5. The findings in K.D.'s case were very similar to those in A.W.'s case with the exception of the reported contact with the licensing branch in K.D.'s case. Miller reports that licensing was going to conduct additional interviews because of the "contradictory" explanations; whereupon, she reaches the

   conclusion that the interviews she had conducted were "contradictory."

6. The interviews she conducted in K.D.'s case were just as consistent as the ones in A.W.'s case. They were supportive of the Petitioners' explanations of what had occurred regarding the bruising and explained that the child had been seen by the doctor who had advised Tammy Kessler to use the same medication she was using with the other children for pink eye.

7. In sum, the Respondent failed to present any credible, admissible evidence to support the conclusions reached in the abuse report on K.D. For the reasons stated above, the report itself cannot be offered for that conclusion. The evidence to the contrary presented by the Petitioners was credible and very supportive of a conclusion that there was no abuse or neglect.

8. Lastly, the statutes on abuse reports and the use and procedures surrounding them have evolved over the last five to ten years. In this case, the abuse report was made and investigated after the opportunity for alleged abusers to challenge a confirmed report was eliminated. As state above, this hearing was the initial "point of entry" for the Petitioners to challenge the conclusion that they were guilty of child abuse.

9. Denying individuals licensure upon factual conclusions that the individuals have not had an opportunity to challenge is a denial of basic due process. To base a finding in this case upon that report's conclusion, would be denial of due process and a serious violation of the Petitioners' constitutional rights under both our state and federal constitutions.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That a final order be entered approving a foster home license for Petitioners.

DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 31st day of March, 2003.

ENDNOTE

1/ Miller reports that another investigator reported that the new foster mother took K.D. to her doctor and he discovered that the child had herpes of the eyes and mouth. This is second or third-hand hearsay. The actual records were not introduced at hearing. Miller also reports that Susan Hayes stated that K.D. could have contracted herpes at the time of birth and not show up for two years; however, Susan Hayes and her credentials for making such a statement are not provided. This is why information contained in these reports cannot be considered to establish the fact asserted in the report.

COPIES FURNISHED:

Frank Keesler Tammy Keesler

12879 Northeast 5th Street Silver Springs, Florida 34785

Ralph J. McMurphy, Esquire Department of Children

and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785

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: 01-002628

Orders for Case No: 01-002628