STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

GLADYS KELLY,

Respondent.

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) Case No. 02-0854

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 30, 2002, by video teleconference in Tallahassee, and Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Robin Whipple-Hunter, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32211

For Respondent: Gladys Kelly, pro se

5710 Poitier Street

Jacksonville, Florida 32209

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Gladys Kelly.

PRELIMINARY STATEMENT

By letter dated January 28, 2002, the Department of Children and Family Services (the Department) advised Ms. Gladys Kelly that the Department was revoking her foster care license. As grounds therefore the Department alleged that Respondent violated Rule 65C-13.010(1)(b)(5)(a) and (f), Florida Administrative Code. This allegation was based on an April 16, 1999, report alleging that Respondent had physically abused children in her care and on an October 22, 2001, report alleging that Respondent engaged in inappropriate discipline at her place of employment.1

Respondent disputed the facts upon which the revocation was based and timely requested an administrative hearing to contest the revocation. The request for hearing was forwarded to the Division of Administrative Hearings on or about February 27, 2002. A formal hearing was scheduled for April 30, 2002, by video teleconference.

At hearing, Petitioner presented the testimony of three witnesses, Janet McMahan, Shirley Tamul, and Brian Snow.

Petitioner's Exhibits numbered 1 through 13 were admitted into

evidence. Respondent testified on her own behalf and presented the testimony of one witness, Vivian Williams. Official Recognition was taken of Chapter 409, Florida Statutes, in particular Section 409.171(8)(a)(1) and (2), Florida Statutes, and Rule 65C-13.010(1)(b)5.a. and f., Florida Administrative Code.

The hearing was not transcribed. Respondent filed a post- hearing submission on May 10, 2002, which has been considered in the preparation of this Recommended Order. The Department did not file a post-hearing submission.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent's home was licensed as a foster home, having been issued license No. 0901-08-3 by the Department. Respondent was also employed at a child care facility named Tadpoles and Toads Daycare Center. Her primary duties at the daycare center were kitchen duties, although she spent a relatively small amount of time with some of the children.

2. In 1998 and again in 2001, Respondent signed an Agreement to Provide Substitute Care for Dependent Children in conjunction with her licensure as a foster care provider. In said agreements, Respondent agreed to abide by the Department's discipline policy which she received during Model Approach to Partnerships and Parenting (MAPP) training.

3. According to Janet McMahan, a foster care licensing supervisor for the Department, MAPP training is required of foster care providers and addresses the issue of corporal punishment. Specifically, the training informs the foster care providers that corporal punishment is prohibited in a foster home.

4. Respondent also signed a document in 1993, 1999, and 2001 entitled, "Foster Care: Policy Statement on Discipline." The 1999 and 2001 versions of this document specifically cite Rule 65C-13.010(1)(b)5., Florida Administrative Code, and state in pertinent part: "Prohibited disciplinary practices

   include . . . hitting a child with an object; spanking a child "

5. Brian Snow was employed by the Department as a family services counselor and protective investigator for approximately two years. He left employment with the Department in April 2002. On October 22, 2001, he received a report about possible medical neglect and other mental injuries regarding children at Tadpoles and Toads Daycare Center where Respondent was employed. He went to the daycare center and interviewed children and staff, including Respondent. The allegations regarding medical neglect did not involve Respondent. However, he investigated allegations regarding Respondent "popping" children on the hands.

6. On October 24, 2001, Mr. Snow went to Respondent's home to investigate allegations that Respondent spanked a child with a belt and hit children on the hands with a plastic folding fan. According to Mr. Snow, two children at Ms. Kelly's home told him that Ms. Kelly hits or "pops" them on the hand when they did something wrong, and one child told him that Ms. Kelly spanked her with a belt. However, as none of the children testified at the hearing, these statements are hearsay.

7. Mr. Snow then again went to Tadpoles and Toads Daycare and again interviewed Ms. Kelly. Shirley Tamul, a childcare licensure counselor for Petitioner, accompanied Mr. Snow to the daycare center for the interview. During that visit, Ms. Kelly admitted to "popping" the foster children on the hand with a plastic fan when the children act up in church or at a store. Mr. Snow and Ms. Tamul discussed the Department's policy prohibiting corporal punishment by foster care parents with

   Ms. Kelly during the October 24, 2001, visit to the daycare center.

8. During her testimony at the hearing, Ms. Kelly again admitted to "popping" the children on the hand to "keep them in line" when they act up. She adamantly denied using a belt to spank any children in her care.

9. There is insufficient evidence to prove that Ms. Kelly hit any child with a belt, notwithstanding the hearsay statement

   attributed to one of Ms. Kelly's foster children. However,

   
   

   Ms. Kelly admits to "popping" the children on their hands because of their behavior. The children's hearsay statements to Mr. Snow regarding Ms. Kelly's "popping" them on the hand supplement Ms. Kelly's admission to that conduct.

10. Mr. Snow did not observe any physical injury on the children he interviewed at either the daycare center or Respondent's home.

    CONCLUSIONS OF LAW

    
    

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

12. The Department of Children and Family Services is the agency charged with the responsibility of licensing foster homes. Section 409.175, Florida Statutes.

13. The Department seeks the revocation of Respondent's foster care license. Accordingly, as the party asserting the affirmative of an issue before this administrative tribunal, the Department has the burden of proof. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). However, in accordance with the definition of "license" contained in Section 409.175(2)(f), Florida Statutes, the licensure status previously awarded to Respondent is not a professional license and does not create a property right.

    Therefore, the Department must establish facts which support its position by a preponderance of the evidence rather than by the clear and convincing standard normally imposed in professional licensure cases. Department of Banking and Finance v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996). In this case, the Department has met its burden

14. In its letter of January 28, 2002, in which it notified Respondent that her foster care license had been revoked, the Department alleged that Respondent violated Rule 65C-13.010(1)(b)5.a. and f., Florida Administrative Code, which reads as follows:

    65C-13.010 Substitute Care Parents' Role as a Team Member.

    1. Responsibilities of the Substitute Parent to the Child.

       
       

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       (b) Family Care Activities.

       
       

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       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.

       
       

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       f. The substitute care parents must not use corporal punishment of any kind.

15. Petitioner also has provided guidance to Respondent through MAPP training that Respondent should not engage in corporal punishment. Petitioner again reminded Respondent of this prohibition on October 24, 2001, during the interview of Respondent at the daycare center.

16. Petitioner has proven by a preponderance of the evidence that Respondent engaged in corporal punishment in hitting or "popping" children on the hand to control their behavior. Petitioner has not proven that Respondent hit any child with a belt. However, given the absolute prohibition against the use of corporal punishment of any kind by persons licensed to care for foster children, revocation is appropriate.

RECOMMENDATION

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

RECOMMENDED:

That the Department of Children and Family Services enter a final order revoking the foster home license held by Respondent.

DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida.

______ BARBARA J. STAROS

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 May, 2002.

ENDNOTE

1/ The case was originally styled Gladys Kelly v. Department of Children and Family Services. The parties have been realigned to reflect the Department as Petitioner and Ms. Kelly as the Respondent.

COPIES FURNISHED:

Gladys Kelly

5710 Poitier Drive

Jacksonville, Florida 32209

Robin Whipple-Hunter, Esquire Department of Children and

Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

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: 02-000854

Orders for Case No: 02-000854