STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT MARLOWE,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-3093

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its designated Administrative Law Judge, Fred L. Buckine, held a formal hearing in the above-styled case on November 6, 2001, in Tampa, Florida.

APPEARANCES

For Petitioner: Scott Marlowe, pro se

514 Winter Terrace

Winter Haven, Florida 33881

For Respondent: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030 STATEMENT OF THE ISSUE

Whether denial of Respondent's re-licensure application as a Foster Care Home for the reasons stated in the Department's denial letter of October 30, 2000, was appropriate.

PRELIMINARY STATEMENT

Petitioner, previously licensed by the Department of Children and Family Services (hereinafter DCF) on August 10, 1999, and again on March 3, 2000, applied to be re-licensed as a family foster care home in Winter Haven, Florida, for another year.

On October 30, 2000, the DCF (District 14 Foster Care Licensing, hereinafter DCF), notified Petitioner that he would not receive a renewal of his license based on allegations that Petitioner had used poor judgment, and violated various cited rules pertaining to child care. The denial letter, in pertinent parts, alleged:

Nicara Daniels, an employee of the Department of Children and Family Services, visited your home on July 31, 2000, and discovered that you had an eighteen-year-old male living in your home named John Snider. You failed to notify the Department that you had changed living arrangements in your home, thereby violating Rule 65C- 13.010(4)(g),[sic] Florida Administrative Code (F.A.C.), requiring notice of changes affecting the life and circumstances of the foster family. You had also failed to have Mr. Snider properly screened as required by Rule 65C-13.007(1) and 65C-13.009(6)(a)5.,

Florida Administrative Code.

On or about August 11, 2000, you used a rectal thermometer to take the temperature of T.G., an eleven-year-old male foster child in your home. Your action woke the child from sleep in the middle of the night and startled him. The child has a history of child abuse. Your action was not

appropriate for the child and you failed to promote the individual physical, social intellectual, and emotional development of the child in your home, as required by Rule 65C-13.010(1)(b)1.a. and 65C-13.010(1)(c)5.,

Florida Administrative Code.

On October 9, 2000, Nicara Daniels visited your home and found six or more containers of medications on a countertop in the master bedroom, which is a violation of Rule 65C- 13.011(14)(a), Florida Administrative Code, requiring that all medications, poisonous chemicals, and cleaning materials must be kept in a locked place, inaccessible to children.

Ms. Daniels also found cooking wines stored under your master bedroom sink in violation of Rule 65C-13.011(14)(b), Florida Administrative Code, which requires alcoholic beverages to be stored out of the reach of small children.

As a part of your license renewal application you indicated that one Mary Scott was a screened sitter in your foster home, but this is not true. A screening packet was mailed on October 2, 2000, for Ms. Scott to complete, but you failed to return the screening packet to the Department. Thus, you violated Rule 65C- 13.011(1)(a), Florida Administrative Code, requiring a single foster parent to have a relief person who can assist with the children and that relief person must be approved by the Department and meet the screening requirements of Chapter 435, Florida Statutes.

On October 24, 2000, you used profanity toward Nicara Daniels, the DCF-re-licensing counselor, during a telephone conversation and you have generally been uncooperative or unwilling to cooperate with the Department in violation of Rule 65C-13.010(1)(c)1, Florida Administrative Code, requiring

foster parents to work cooperatively with the counselor as a member of a treatment team for foster children.

You have been unwilling to provide DCF with screening information about a neighbor whom you had supervise foster children in your home, which is a violation of Rule 65C- 13.010(1)(c) 1., Florida Administrative Code, requiring foster parents to cooperate and communicate with the Department's staff.

On October 25, 2000, the Department discovered that you had placed or posted on an internet site the names and photographs of foster children in your home in violation of requiring that such information be kept confidential.

During April 1999, you removed G.K., a foster child, from a medication prescribed by a doctor. This action violated Rule 65C- 13.010(1)(b)7.a., Florida Administrative Code, requiring that foster parents be responsible for dispensing medication as prescribed by a physician and recording the exact amount of any medication prescribed.

Petitioner disputed the allegations and requested an administrative hearing that was held on November 6, 2001.

At the DCF's request the undersigned granted Official Recognition to Section 409.175, Florida Statutes, and Sections 65C-13.007 through 65C-13.011, Florida Administrative Code.

DCF presented the testimony of four witnesses: Robert Mistretta; Nicara Daniels; Ann Hipson; J. Snyder; and Stephanie Gardner; and introduced three exhibits (R1-3) which were received in evidence. Petitioner testified in his own behalf, offered the testimony of John Snider, and introduced one

composite exhibit (P-1) which was received in evidence. The parties agreed to the introduction of the deposition of

Dr. Patricia Buck, pediatrician, and Child Protection Team member for District 14, including Polk, Highland and Hardee counties, as a joint exhibit. On November 6, 2001, the late submission of a certified copy of a Broward County, Florida, court order, placing minor child G.K. in Petitioner's care and custody, was received.

The Transcript of the hearing was filed November 26, 2001.

On December 19, 2001, the parties filed a Joint Motion for an Extension of Time to File Proposed Recommended Orders, which was granted by Order dated December 20, 2001. DCF's Proposed Recommended Order was filed on January 18, 2002, and Petitioner's Proposed Recommended Order was filed on January 24, 2002, both of which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon observation of the witnesses and their demeanor while testifying, the documentary materials received in evidence and the entire record complied herein, the following relevant facts are found:

1. Under Section 409.175, Florida Statutes (2001), the Department of Children and Family Services is the State Agency

   responsible for evaluating, qualifying, licensing, and regulating family foster care homes.

2. Petitioner, a single male, previously employed with an abused children agency in Broward County, Florida, was granted a foster care parent license by the DCF's Foster Care Licensing unit effective August 10, 1999, through November 10, 1999. A second child specific foster home license for G.K. was issued to Petitioner, effective from March 3, 2000, through August 10, 2000.

3. DCF takes the position that Petitioner is not eligible for re-licensure as a family foster home primarily because he exhibited "poor judgment" relative to a single medical treatment, taking the temperature of an eleven-year-old male foster child through his rectum during the month of August 2000. DCF further alleges that Petitioner has willfully violated specific statutes and rules relating to the conduct and maintenance of the foster home. Those alleged violations are specified in the licensure denial letter dated October 30, 2000, from the DCF to Petitioner.

4. Nicara Daniels is a foster care licensing unit worker with the DCF since November 1999. Ms. Daniels had on-the-job- training and some Professional Development Center Training for new employees. In the licensing unit, Ms. Daniels had training in physical abuse, sexual abuse, drug abuse, and emotional abuse

   toward children. The DCF used Ms. Daniels to provide testimony regarding each violation as they appeared in the letter of denial. Herein below the allegations are chronologically addressed.

   1. Medication and cooking wines in Petitioner's bathroom.

      
      

5. On or about July 31, 2000, a period when Petitioner was licensed, Ms. Daniels, Child Protection Investigator assigned Petitioner, made an unannounced visit to Petitioner's home during a period when Petitioner was medicating himself. During her walk through Petitioner's bedroom she entered his bathroom and saw Petitioner's medication for his diabetes on the bathroom shelf along with several bottles of cooking wines. Ms. Daniels acknowledged that she observed the cooking wines in the bathroom. Along with bottles of medication she also observed the lock box in which Petitioner kept his medications and cooking wines when not in use. The door to Petitioner's bedroom and bathroom each had operative locks on them. Ms. Daniels knew that Petitioner took medication for his diabetic condition prior to this inspection and she acknowledged having no experience with the use of cooking wines.

6. Rule 65C-13.011(14)(a) and (b), Florida Administrative Code, requires all medication, poisonous chemicals, and cleaning materials to be in a locked place and inaccessible to children, and that alcoholic beverages should be stored out of the reach

   of small children; with the recommendation that these beverages be kept in a locked place. Ms. Daniels admitted that for the children, all of whom were 11 years or older, to have access to the medication or cooking wines, they must enter the bedroom, go into the bathroom and open the lock box. There is no evidence presented of any foster care child having access to Petitioner's bedroom, bathroom or the locked medicine box at any time.

7. In making the foregoing finding, I have considered Ms. Daniel's testimony that she knew Petitioner was on

   medication. Ms. Daniels, however, never questioned the children whether they entered or attempted to enter Petitioner's bedroom at any time when he was not present. I find the mere presence of medications and cooking wines in Petitioner's bathroom, absent other evidence, is not a violation of the cited rule.

   1. John Snider in Petitioner's Foster Care home.

      
      

8. Ms. Daniels testified that during an early morning visit on an unspecified date in July of 2000, she observed a young man, John Snider, in Petitioner's home. After she advised Mr. Snider had to be screened, Petitioner followed the DCF's process and a screening application for Mr. Snider was submitted to the Department. The Department screened and cleared

   Mr. Snider and advised Petitioner and Mr. Snider by letter on August 21, 2000. Rule 65C-13.010(4)(g), Florida Administrative Code, requires that the foster care parent notify the department

   of the presence of such person. Rule 65C-13.007(1), Florida Administrative Code, requires screening for "all persons that provide respite care in the . . . home on an overnight basis must be screened." Rule 65C-13.009(6)(a)5., Florida Administrative Code, requires a criminal records check for "all persons 18 years and older residing in the . . . home." Petitioner, during a telephone conversation with Ms. Daniels on July 31, 2000, informed her that Broward Juvenile Justice placed Mr. Snider in his home on July 27, 2000. It is Ms. Daniels' opinion that a four-day period between entry and notifying DCF is not reasonable notification. This "unreasonable" delay formed the basis for violation of the cited rule, notwithstanding the particular circumstances. Rule

   65C-13.007(1), Florida Administrative Code, which requires "all persons that provide respite care . . . must be screened.” I find Ms. Daniels' opinion that four days is not "reasonable" notification not based upon any protocol, policy or rule of the DCF.

9. In making the foregoing finding, I have considered the following. Petitioner informed Ms. Daniels by telephone that there were matters to discuss; however, the discussion took place four days later when Ms. Daniels was available. The Department of Juvenile Justice for Broward County placed Mr. Snider in Petitioner's home. After submitting an application,

   Mr. Snider was screened and cleared by the DCF. Considering the evidence as a whole, I find Mr. Snider's presence in Petitioner's home, under authority of the Broward County Juvenile Justice unit, and with telephonic notice to the DCF's licensing unit worker four days after entry into the home is not unreasonable, under the circumstances.

   
   

   Home

   1. Department's placing of T.J. in Petitioner's Foster

      
      

10. Sometime during the first week of August 2000, Robert

    
    

    Mistretta, Department's child protection investigator and T.J.'s initial case worker, removed T.J. from his family and sought overnight foster care for him. Mr. Mistretta, aware of T.J.'s family situation, his medical, physical, emotional, and sexually abusive history sought a foster care home with those factors in mind. The Department's placement unit instructed him to take

    T.J. to Petitioner's home for an overnight stay.

    
    

11. Mr. Mistretta took T.J. to Petitioner's home with the intention of an overnight stay and reassessment of the situation the following morning. After discussion with Petitioner of T.J.'s need for an overnight stay, Petitioner agreed.

    Mr. Mistretta chose not to provide Petitioner with information regarding T.J.'s medical, social, physical, emotional, or abusive family history. However, Mistretta gave Petitioner the

    DCF's emergency pager phone number [570-3081] for use during non-working hours and for emergencies should the need arise.

    1. Rectal Temperature Taking

       
       

12. What had begun as an overnight stay resulted in a permanent placement and on or about August 6 or 7, 2000, T.J. became ill. His illness began during the day and continuing into the night. According to Petitioner, T.J. exhibited symptoms of a cold or flu, including fever, chills and headache. During the night, he was restless, tossing and turning in his sleep. Petitioner, having no medical history on T.J., became concerned about T.J.'s condition. He made several calls to the Department's emergency pager number [570-3081] provided him by Bob Mistretta, without success. Petitioner then attempted to contact Dr. Stuart Grant, a pediatrician, to no avail. Petitioner thereafter attempted to use his MAPP training first aid guide provided by the Department, but found those instructions unclear. Petitioner then sought information concerning fever and temperature taking from the internet.

13. During the night while T.J. was asleep, Petitioner used a rectal thermometer to take T.J.'s temperature, causing him to awaken suddenly, somewhat startled. Petitioner talked with T.J., explained his concerns with his condition and the reason for taking T.J.'s temperature in that fashion. T.J. responded in a positive manner and went back to sleep.

14. The following morning, Petitioner contacted Mistretta and explained what had happened with T.J. the night

    before. Mistretta took T.J. aside and privately inquired if he understood "good" touching from and "bad" touching. T.J. stated he understood the difference. When asked about Petitioner's manner of touching him while taking his temperature during the night, T.J. affirmed that Petitioner's touching was a "good" touch and not a "bad" touch. Mistretta, based upon his experience working with children who had suffered abuse, accepted T.J.'s response as true. Satisfied that no "bad" touching occurred during the rectal temperature taking process, Mistretta reported the incident to his supervisor, including his conclusion that nothing sexually or abusive had occurred and concluded his report in part as follows:

    "This case is closed with no indicators. There is no maltreatment that addressed a bad choice of judgment by a caretaker.

    There are licensing [unit] concerns regarding Mr. Marlowe's choice to use a rectal thermometer on an 11 year old child." (Emphasis Added)

    
    

15. Mr. Mistretta testified that his understanding of the sequence of events the night T.J. was ill were: T.J. was running a high fever and had trouble falling asleep. Petitioner tried cold cloths to reduce the fever that, according to Petitioner's monitoring, was getting too high. Since T.J. was having trouble sleeping and once he did sleep, Petitioner

    thought a rectal thermometer would be best to try not to awaken him, Petitioner chose to use that form of temperature taking.

    T.J. reacted with a little bit of pain. Based on Petitioner's history of dealing with sexually abused kids, that reaction is not normal. When Petitioner talked with him about what happened, T.J. disclosed his history to Petitioner. In the process of making the decision as to the appropriate treatment, Petitioner consulted with a Johnson and Johnson book and several medical web sites. The documents from the medical web sites were subsequently provided by Petitioner. I find Mr. Mistretta's testimony credible regarding his conversation with Petitioner immediately after the T.J.'s incident.

16. Following the above, Ms. Mistretta, in addition to his duty as T.J.'s caseworker, was also assigned by his supervisor to investigate a hotline abuse report. Mr. Mistretta investigated the alleged abuse narrative report and found no indication of maltreatment. He recommended the hotline abuse report be closed. Upon being presented with the hotline abuse report narrative with suggestions and allegations of sexual abuse, Mr. Mistretta testified:

    "The information generated in this narrative in the reporter page that has reporter information states that the CPI, Robert Mistretta, told reporter about allegations. So the source of this report is me.

    The reporters made their own clarifications, answered their own questions regarding some things instead of calling me back to clarity, talked amongst themselves, found out that they didn't like what happened, and some of the narrative is not true. It is blown out of the water, if you would. The narrative was started by a report. When Mr. Marlowe talked to me, I talked to somebody who talked to somebody, who talked to somebody. The next thing you know we have sexual abuse. The narrative is not true. I did not agree with the removal of T.J. (Emphasis Added)

    
    

    I find Mr. Mistretta's testimony on this issue to be consistent and credible.

17. In making the foregoing finding, I have considered the testimony of the DCF's other witnesses, none of whom had personal knowledge of the abuse report contents. However, Mr. Mistretta is the only witness with personal knowledge of events acquired in his positions as T.J.'s initial caseworker, his placement agent, the interviewer of T.J. and Petitioner, and the originator of the initial report. I have considered the fact that this incident occurred during the week of August 6-12, 2000. Petitioner's license expired on August 10, 2000. However, the DCF did not remove T.J. from Petitioner's home until September 6, 2000, almost a month later. I have also considered Ms. Daniels' testimony that during Petitioner's unlicensed period, DCF's placement unit continued to place children in Petitioner's home.

18. I have also considered the deposition of Dr. Patricia Buck, M.D., pediatrician and Child Protection Team member for District 14 [Polk, Highland and Hardee counties], who was qualified as an expert in pediatrics and child abuse. After her review of documents provided by DCF and given the circumstances by DCF's counsel and Petitioner, Dr. Buck opined that use of a rectal thermometer would not have been her recommendation, had she been the care provider. According to Dr. Buck, anal temperature taking as a medical procedure is not abuse. Adding that the more medical history one has on a patient, the less likely a mistake in patient treatment. The evidence as a whole, including Mistretta's testimony and Dr. Buck's opinion, is persuasive as it relates to the issue of the circumstances and the "appropriateness" of the rectal temperature taking procedure.

19. Accordingly, the testimony of Ms. Daniels, the licensing unit informs placement and other Department units of those parents who were licensed, parents who were not licensed or parents whose licenses had expired. She recalled attending the staffing meeting regarding the T.J. temperature incident and recalled informing staff that Petitioner was not a licensed foster care home after August 10, 2000. According to

    Ms. Daniels, placing children in a non-licensed home is not permissible. However, its her testimony that in this case,

    DCF's placement unit placed children in Petitioner's home during a period of time he was not licensed, and during the time

    T.J. was in Petitioner's home because of [DCF] "it being in a crisis situation with the number of homes we had."

20. In making this finding, I have considered both the DCF's need for foster care beds and its concern for the safety of foster care children. I have also considered the DCF's use of Petitioner's home when they were "in a crisis situation with the number of homes we had."

    1. Screening of Ms. Scott

       
       

21. Regarding the screening of Ms. Scott, Ms. Daniels testified Petitioner informed her that the screening application papers for Ms. Scott were submitted to the Department and had apparently come up missing. Ms. Daniels acknowledged that she had no evidence to support her conclusion that Ms. Scott was a respite sitter for Petitioner's foster care children; that she had never checked with the DCF to ascertain whether or not Ms. Scott had been screened. Not inquiring whether Ms. Scott had been screened renders Ms. Daniels' testimony questionable. I find Ms. Daniel's testimony regarding Petitioner's failure to provide the Department with Ms. Scott's application for screening not credible.

    1. Unwillingness to Provide Information on Mary Poe

       
       

22. At some unspecified date, Ms. Daniels recalled she had a conversation with Petitioner regarding his next door neighbor, Ms. Poe, someone who would "check" on the foster children from time to time when Petitioner was late returning from work.

    Ms. Daniels did not recall if Ms. Poe entered Petitioner's home or gave the key to the children to enter in the home on days he was late returning from work. Ms. Daniels recalled only that, Petitioner's attitude regarding screening Ms. Poe was "uncooperative" and "defiant."

23. During cross-examination Ms. Daniels could not recall the conversation with Petitioner when she was informed that Petitioner's condominium covenants required the manager to have a key to his apartment in case of emergencies. She did recall that Petitioner told her Ms. Poe was the mother of the condominium manager. Ms. Daniels recalled when she voiced concern with the situation Petitioner retrieved his key from Ms. Poe and returned it to the condominium manager for pick up by the children when they returned from school. I find

    Ms. Daniel's testimony regarding Petitioner's unwillingness to provide information concerning Mary Poe evasive, inconsistent and not credible.

24. In making the foregone finding, I have considered Ms. Daniel's inability to recall facts, dates, times, places,

    regarding the matter to which she testified. I have considered the fact that Petitioner, when Ms. Daniels voiced concern, corrected the situation by removing the key from Ms. Poe's possession, thereby removing the need for screening by the Department. I have also considered Ms. Daniels' inability to recall facts regarding an incident the DCF considered an intentional refusal by Petitioner to "cooperate" and "communicate" with Department's staff.

    1. Confidentiality in Keeping a Life Book on Foster Care Children

       
       

25. Ms. Daniels testified that Petitioner informed her the foster care children had a computer life book (photo album) website. After being directed to the website by Petitioner and after viewing the website, Ms. Daniels concluded Petitioner had "released" the names and photos of the foster children on the websites. Without providing a rational basis, she testified that keeping required foster child life books in an electronic format is, in and of itself, inappropriate. She further testified that placing the names and photos on the web site violated DCF's rule of confidentiality. Rule 65C.010(1)(c)4., Florida Administrative Code, requires the foster care parent to

    maintain the children's records which ensures confidentiality for the child and the biological parents.

26. Petitioner maintained that each child made an individual and personal decision to use the computers he made available in his home. To his knowledge each child placed his personal information, name, foster care status, photos, etc., on the web sites during chats and exchange of information with others users in various chat-room conversations.

27. Ms. Daniels never inquired of the foster children whose names and status were found on the book of life web sites to ascertain whether they or Petitioner placed personal information on the web site. I find her testimony on this issue to be questionable, but reliable.

28. In making the foregoing findings, I have considered Ms. Daniels' testimony and the absence of evidence in support thereof. I find Petitioner's testimony that he never divulged any confidential information on the web sites regarding foster children in his care credible, but not persuasive. As the custodial parent, Petitioner has the ultimate responsibility to maintain and protect the confidentiality of the children in his care and under his supervision. Permitting children of divulge personal/confidential and potentially endangering information on the web site is a breach of Petitioner's parental responsibility.

    1. Removal of G.K. from medication prescribed by a Doctor

    
    

29. DCF alleged that Petitioner removed G.K. from prescribed medication in violation of Rule 65C-13.010(1)(b)7.a, Florida Administrative Code, which imposes on the foster parent the responsibility for dispensing the medication as prescribed by the physician and recording the exact amount prescribed. In support of this allegation, the Department offered the testimony of Ms. Daniels. Ms. Daniels, by her admission, had no personal knowledge regarding G.K. and Petitioner's actions with G.K.'s medication. Her testimony was based upon what she had previously read in the file prepared by Stephanie Gardner, DCF's Representative and Petitioner's caseworker before the case reassignment to Ms. Daniels.

30. When Ms. Daniels initially inquired of Petitioner about G.K.'s medication, he informed her that before he discontinued G.K.'s medication, he consulted with a nurse who in turn consulted with the prescribing doctor about the matter. Based on the response received from this consultation he discontinued G.K.'s psychotropic medication. Ms. Daniels based her conclusion of unauthorized discontinuance of medication on her conversations with Ray Mallette, a Department mental health counselor.

31. In his letter to Petitioner, Mr. Mallette stated, in pertinent part:

    "To my knowledge, G.K. was not taking any psychotropic medication while under my care. Treatment was terminated in June of 1999, by mutual agreement, as no further care needed."

    
    

32. Ms. Daniels testified that during her conversations with Mr. Mallette she recalled his stating that he did not authorize discontinuation of G.K.'s medication. Ms. Daniels could not state with any certainty if Mr. Mallette's use of the term "medication" included psychotropic medications or other medications. Petitioner provided Ms. Daniels the name of the Broward County physician with whom Petitioner had conferred through his nurse and who authorized taking G.K. off medication. There is no evidence that Ms. Daniels attempted to verify whether the medical persons provided by Petitioner had given instructions to take G.K. off psychotropic medications. I find Ms. Daniels' testimony on the issue of G.K.'s medication to be incomplete, confused and, not creditable.

33. In making the foregoing finding, I have considered Mr. Mallette's letter reflecting that he is not a medical doctor or dentist; therefore, he cannot prescribe nor discontinue a prescribed medication to a patient.

    I. Use of profanity and general unwillingness to work cooperatively with the Department

34. Rule 65C-13.010(1)(c)1., Florida Administrative Code, requires foster care parents 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. In support of the above allegations, the DCF offered only the testimony of Ms. Daniels who stated: ". . . [A]lso during a conversation Mr. Marlowe used profanity. As far as [sic] concerned as just being uncooperative and maybe someone being uncooperative meaning there's something else behind it as far as, you know, not one to follow the rules that are set by the Department." I find the above testimony of Ms. Daniels to be vague and questionable.

35. In making the foregoing finding, I have taken into consideration the fact that Ms. Daniels could not recall the date, time, place, words, or the circumstances of her conversation with Petitioner in which the alleged profanity was uttered. I have also taken into consideration the testimony of Ms. Stephanie Gardner, regarding Petitioner's uncooperativeness. Ms. Gardner, acknowledging that she did not know, did not remember nor did she recall; then went on to state: " . . . that at some unknown time and date, Petitioner stated, mentioned or indicated some information about a child or foster child that he had parented before. I don't know if it was Gary or one of the children that were actually at the Broward County at the Outreach Broward facility where he worked, but it was some

    information, and it was kind of alarming." I find the testimony of Ms. Daniels and the testimony of Ms. Gardner regarding the alleged profanity and regarding alleged uncooperativeness of Petitioner with the DCF questionable.

36. Excluding the foregone evidence, other testimony regarding Petitioner and his conduct addressing matters that are related to those specific issues raised in DCF's denial letter of October 30, 2000, is neither material nor relevant to issues under consideration in this cause and disregarded.

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearing has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1) and Chapter 400, Part III, Florida Statutes.

38. The Department of Children and Family Services is the state agency responsible for evaluating, qualifying, licensing and regulating Foster Care Parents and Foster Care Homes, under Section 409.175(1)(a), Florida Statutes (2000), which provides in pertinent part:

    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 the 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.

    
    

39. This case involves DCF's refusal to re-issue a foster care license to Petitioner primarily for his alleged "use of bad judgment" in electing to take the temperature of a sick 11-year- old male child through his rectum. Other allegations by the DCF in the denial letter justified the Department's decision to refusal Petitioner's denial or relicensure.

40. The party asserting the affirmative of an issue before an administrative tribune has the burden of proof. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). DCFs' duty to go forward and the burden of proof in this cause of issuing license is only by a preponderance of the evidence, which is an exceedingly slim margin. DCF must prove the allegations that are contained in its October 30, 2000, letter of denial to Petitioner.

41. Section 409.175(1)(e), Florida Statutes (2000), states:

    "License" means "license" as defined in s. 120.52(9). A license under this section is issued to a family foster home or other facility and in 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 an entitlement. This privilege must guide the finder of fact or trier of law or court action initiated by the department.

42. Rule 65C-13.011(14)(a) and (b), Florida Administrative Code--Foster Home Safety, states in part:

    1. All medications, poisonous chemicals, and cleaning materials must be in a locked place and inaccessible to children.

    2. Alcoholic beverages should be stored out of the reach of small children. To avoid access to alcoholic beverages by older children, it is recommended that these beverages be kept in a locked place.

       
       

43. For the reasons set forth in Findings of Fact 5 through 7, DCF has failed to prove by a preponderance of the evidence that the children had access to Petitioner's medication and failed to prove that Petitioner failed to provide an inaccessible locked place for cooking wines.

44. Rule 65C-13.010(4)(g), Florida Administrative Code-- Responsibilities of the Substitute Care Parents to the Department, states in part:

    (g) The substitute care parents must notify the department regarding changes which affect the life and circumstances of the shelter or foster family.

    
    

45. Rule 65C-13.007(1), Florida Administrative Code-- Respite Care, states:

    (1) All persons that provide respite care in the child's foster home, emergency shelter or group home on an overnight basis must be screened pursuant to Chapter 85-54. Training in the GPS-MAPP program for those providers should be strongly encouraged in order to assist them in providing quality care. If a respite care provider is unable

    or unwilling to attend the GPS-MAPP training they must receive an orientation which covers protocol for handling emergencies, confidentiality, the department's discipline policy and an overview of substitute care.

    
    

46. For the reasons set forth in Findings of Fact 8 and 9, DCF has failed to prove by a preponderance of the evidence that Petitioner changed the living arrangements in his home, thereby changing the life and circumstances of the foster family without giving reasonable and proper notice to the department.

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

Florida Administrative Code--Responsibility of the Substitute Parent to the Child, states in part;

(1)(b)1.a. The substitute care parents are expected to provide structure and daily activities designed to promote the individual physical, social, intellectual, spiritual, and emotional development of the children in their home.

* * *

(1)(c)5. The substitute care parents must accept the child as a member of their family, and accord the child the rights and responsibilities appropriate to his age and level of maturity.

1. For the reasons set forth in Findings of Fact 10 through 20, DCF has failed to prove by a preponderance of the evidence that Petitioner failed or refused to promote the individual physical, social, intellectual, and emotional development of the foster children in the home.

2. Rule 65C-13.011(1)(a), Florida Administrative Code-- Minimum Standards for Licensure of Family Foster Homes, Family Emergency Shelter Homes and Family Group Homes, states in part:

   1. Family Composition.

      (a) It is most desirable for the substitute care family to include two parents in order to maximize opportunities for the care and nurturing of children. This is especially true for families that provide emergency shelter care. Emergency shelter care providers are required to be available to receive children 24 hours a day. A single person may only be licensed if they have a relief person who can assist with the children. The relief person must be approved by the department and meet the screening requirements of Chapter 85-54, Laws of Florida.

      
      

3. For the reasons set forth in Findings of Fact 21 through 25, DCF has failed to prove by a preponderance of the evidence that Petitioner failed to submit to DCF a screening application for Ms. Scott and likewise failed to prove that Petitioner was unwilling to provide information and circumstances regarding Ms. Mary Poe.

4. Rule 65C-13.010(1)(c)4, Florida administrative Code-- Substitute Care Parents' Role as a Team Member, in part states:

   (1)(c)4. The substitute care parents must maintain the children's records in a secure manner which insures confidentiality for the child and the biological parents.

   
   

5. For the reasons set forth in Findings of Fact 25 through 28, DCF has proven by a preponderance of the evidence

   that Petitioner permitted confidential information about a foster care children in his care to be placed on the internet.

6. Rule 65C-13.010(1)(b)7.a, Florida Administrative Code-

   -Substitute Care Parents' Role as a Team Member, in part states: (1)(b)7.a. Medicine. The substitute care

   parents must be responsible for dispensing the medication as prescribed by the physician and recording the exact amount of any medication prescribed for a child by a physician or dentist.

   
   

7. For the reasons set forth in Findings of Fact 30 through 33, DCF has failed to prove by a preponderance of the evidence that Petitioner improperly removed G.K. from medication prescribed by a physician.

8. Rule 65C-13.010(1)(c)1, Florida Administrative Code-- Substitute Parent Responsibilities, in part states:

   (1)(c)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. For the reasons set forth in Findings of Fact 34 through 36, DCF has failed to prove by a preponderance of the evidence that Petitioner did not work cooperatively with the counselor as a member participating in the temporary foster care of children placed in his home.

10. Subsection 409.175(i)(e), Florida Statutes (2000), provides a mandatory guide for the finder of fact in an action initiated by the department. In this case, Petitioner's failure to protect the confidentiality of the foster care children in his charge is sufficient to deny him the privilege he once enjoyed.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED

That the Department of Children and Family Services enter its final order, DENYING Petitioner a foster care home license.

DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 27th day of February, 2002.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Scott Marlowe

514 Winter Terrace

Winter Haven, Florida 33881

Peggy Sanford, 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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-003093

Orders for Case No: 01-003093