vs. ) Case No. 02-1960
Respondent. )
Pursuant to notice, a final hearing was conducted in this case on July 12, 2002, via video teleconference at sites in Miami and Tallahassee, Florida, before Administrative Law Judge Florence Snyder Rivas, of the Division of Administrative Hearings.
At issue is whether Petitioner’s foster home license should be revoked.
By letter dated April 1, 2002, the Department of Children and Family Services (the Department or DCF) notified Petitioner, Travis Davis (Petitioner or Davis), of its intent to revoke his foster home license pursuant to Florida Administrative Code, Rule 65C-13, for violation of minimum standards.
Petitioner timely requested an administrative hearing, which was held on July 12, 2002. Petitioner testified on his own behalf and also presented the testimony of Marquita Parker and Leila Hill.
The Department presented the testimony of Lucius Daniel and Lisa Ellis, and introduced two exhibits into evidence.
The transcript of the final hearing was filed on August 12, 2002. A timely agreed motion for additional time to submit proposed recommended orders was made, and an enlargement of time was granted through August 26, 2002. DCF timely filed a Proposed Recommended Order which has been carefully considered; Petitioner advised DOAH that he did not desire to make a written
submission.
Petitioner holds a bachelor's degree in social work from Florida International University. Since his graduation in December 1995 he has been steadily employed in a variety
of positions which involve dealing with foster children and special education students.
Davis' employment included work for the Department as a foster care counselor and a protective investigator. In addition, he has a long history of involvement in his church, including teaching Sunday school and volunteer work with youth in the community.
Relatives, including a mother and sister, live in the area and are supportive of his desire to continue as a foster parent.
For all these reasons, the Department held high hopes for Davis as a foster parent when he sought and received a foster home license in the fall of 2001.
Notwithstanding his extensive experience with exceptionally needy children Davis was required to and did attend the 30-hour training course required of all new foster parents.
Davis, like all foster parents, entered into a detailed contractual agreement with DCF which sets forth the obligations of foster parents and states that non-compliance will lead to revocation of the license.
The contract is lengthy, but for purposes of this case it suffices to say that it obligates foster parents to provide adequate, age-appropriate supervision at all times. In order to
assist the foster parents in fulfilling this and other obligations, DCF is contractually obligated to support foster parents in a number of ways. The foster parent must be informed in as much detail as is available to DCF of a child's special needs or limitations. If the child is taking prescribed medication, DCF is obliged to provide the medication when the child is brought to the foster home, along with instructions for administering the drug. DCF is also required to exercise professional judgment when placing a child in a foster home to assure, to the extent possible, that the foster parent is capable of managing the child.
Shortly after Davis was licensed, DCF assigned to him a particularly difficult child, K.N. At the time K.N. was brought to Davis on December 4, 2001, the child, a boy, was 12 years old. Davis was informed that K.N. was on medication, but DCF did not provide the medication. Davis made several efforts to secure the medication for K.N., but he was not successful.
At the time K.N. was placed in Davis' home, Davis already had one foster child, D.L. Davis had previously committed to D.L. and to other neighborhood teenagers to take them in his van to the Soul Bowl high school football game in Tallahassee on December 9, 2001.
The trip was uneventful until the return drive.
During the trip back from Tallahassee, K.N.’s difficult behavior
irritated the other children. In the ensuing horseplay, K.N. ended up with his pants down for approximately the final hour of the return trip.
Details of the incident are impossible to state with certainty. The Department presented no testimony of any individual with personal knowledge of the incident. Davis and a teenage girl who was on the trip testified to their recollections. The undersigned, having carefully viewed their demeanor under oath, credits their testimony as candid; they were clear and precise with regard to elements of the day that they did recall, and honest in stating where their recollections were imprecise.
The Department repeatedly asserts that K.N. was "naked" but the use of this word, as it is commonly understood, is unsupported by any competent evidence. It cannot be ascertained from the record, for example, whether K.N. was wearing underwear as well as pants, and if so, were the underwear pulled down as well? The only direct testimony regarding whether or not K.N.'s genitals were exposed to the other children was offered by Davis, who believes that K.N.'s genitals were always covered. K.N. and D.L. denied any improper touching to DCF's investigator, according to his written report.
After years of driving youth from his church and community on field trips, Davis, like anyone who drives carloads
of children, had learned to filter out background noise in order to focus on safe driving. Yet, like anyone responsible for a vanload of kids, he also had to remain cognizant of behaviors in the back seat(s). At some point, Davis became aware that there was an issue concerning K.N.'s pants. Davis, as well as the teenage passengers in the car, acting on Davis' instructions, made efforts to convince K.N. to get his pants back up. K.N. refused. It was raining for at least a portion of the time while Davis was attempting to deal with the situation from the driver's seat.
The testimony offered by Davis on his behalf establishes that the situation among the children, particularly K.N., could have been dealt with more aggressively and with better results. The wiser course would have been for Davis to pull over, rearrange seating, verbally re-direct K.N. and the other passengers, and, as a last resort, summon the police.
It is equally clear that Davis was the only adult in the car and responsible to deliver the children home safely on a rainy day. He had tuned out the back seat noises to focus on driving when it seemed reasonable to do so, and, once aware of the situation with K.N.'s pants, decided to manage it as best he could from the driver's seat and get everyone back home as quickly as possible.
The situation was resolved when Davis drove his van to the north Dade home of Davis’ sister, who had a good rapport with K.N. K.N. complied promptly with her instruction that he get himself properly dressed.
Soon after the trip, K.N. related a lurid and untruthful version of events to a third party. A complaint against Davis to the state's child abuse hotline resulted.
Davis felt mistreated by the DCF investigator who was dispatched to look into the allegations. Davis perceived that the investigator had prejudged the complaint and deemed Davis to be guilty of participating in and/or allowing sexual abuse of K.N.
Rather than complain to the supervisor of the investigator who offended him, Davis made another bad decision---he refused to honor the investigator's request that
he provide the names and whereabouts of the other passengers in the van.
Davis' failure to provide this information immediately was not deemed by DCF as a serious enough offense to warrant immediate removal of the foster children. Nor did it prejudice DCF in these proceedings, for Davis did provide the names to DCF well in advance of the final hearing.
Davis' refusal to provide the names when first asked to do so was self-defeating in the extreme, for the passengers
were in a position to corroborate what the investigator was told by both foster children: that Davis had not provoked the removal of K.N.'s pants, and had made efforts to ameliorate the situation as soon as he became aware of it, and was successful to the extent that the other children cooperated with his request to encourage K.N. to pull his pants up, which K.N. was fully capable of doing.
The Department contends that "there is no amount of additional training or any other remedial action (short of license revocation) that would alleviate the Department's concern about [Davis'] ability to provide proper care and supervision to foster children."
This contention is rejected for two reasons: First, although the substance of DCF's investigation was completed by December 12, K.N. remained in Davis' home until December 17, at which time Davis realized that he was not capable of handling K.N.'s behaviors and returned him to the custody of his foster care counselor. Second, Davis requested and received DCF's permission to keep his other foster child, D.L. "through the holidays." That time frame was generously interpreted by DCF staff; they did not take D.L. from Davis' care until February 8, 2001.
Davis is appropriately regretful that he was not adequate to the task at hand on December 9. He also understands
the inappropriateness of failing to fully cooperate with DCF's investigation in a timely fashion. Although the future is impossible to predict, it is reasonable to credit Davis' word that he has learned from these mistakes.
Davis is willing to unconditionally accept additional training, supervision, and assistance from DCF.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The law governing this proceeding is undisputed.
Section 409.175(1)(f), Florida Statutes, reminds that although anyone may have a child of his own, the opportunity to foster a child whose parents have proved unable or unwilling to care for him is a privilege, not a legal right:
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 an entitlement. This privilege must guide the finder of fact or trier of law at any administrative proceeding or court action initiated by the department.
The privilege, however, may not be arbitrarily withdrawn, and for purposes of this case the undersigned accepts paragraph 15 of the Department's Proposed Recommended Order,
which states: "The Department has the burden of proof in this proceeding. Because the Petitioner is not entitled to the license, the Department must only provide a specific reason for the revocation of Petitioner’s foster home license and present competent evidence supporting the proffered reason. See Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996)."
Section 409.175(4)(a), Florida Statutes, gives the Department of Children and Families the authority to "adopt and amend licensing rules for family foster homes.” Those rules are set out in Rule 65C-13, Florida Administrative Code. The bar is properly set high.
Rule 65C-13.009, Florida Administrative Code, describes the philosophy which currently guides the state's foster care program, and also sets forth specific qualities which are necessary if the foster parents are to ". . . grow in their new roles. "
The Rule is suffused with references to the partnership that must exist among DCF staff, foster parents, and, if applicable, other individuals involved either professionally or personally with the child's life.
Davis' judgment as the Soul Bowl trip wound its way back to Miami was imperfect, but not so imperfect as to
establish that K.N. was damaged in any way, or that Davis is incapable of "grow[ing] in [his] new role."
DCF has failed to establish that Davis, in DCF's words, "failed to properly supervise the foster children in his care, and in particular, failed to protect K.N. from sexual exploitation by the older children on the trip." DCF did not present a shred of evidence that K.N. was sexually exploited. Indeed, DCF presented no testimony from any individual with first-hand knowledge of the trip.
All of the competent evidence in this case was presented by Davis, and not discredited in any way by DCF. It establishes that Davis was in over his head with K.N. in general, and on that trip in particular. DCF bears some responsibility in this matter. Despite its contractual promises of full support to foster parents, DCF gave Davis, a person new to foster parenting, an unmanageable child, without necessary medications, and expected him to be able to handle it because he had a college education in social work and professional experience with disturbed children.
Yet, there is no authority for DCF's view that a well educated foster parent may be held to a higher standard of parental competence, or is entitled to less that full disclosure and support from DCF regarding the problems a child brings to the home. The skills involved in being a parent are simply not
the same as the skills involved in working with troubled children who are fed, clothed and sheltered by someone else.
Given the fact that DCF elected to leave K.N. with Davis until Davis gave up on the relationship, and permitted D.L., who wanted to remain with Davis, to stay in his home for nearly two months after the alleged inexcusably inadequate supervision, it is not logical to conclude that "no amount of additional training or other remedial action short of revocation of the foster home license . . . would assure the Department that any other foster children would be safe if entrusted to the care of Davis."
It may be that Davis will never be competent to care for a child with K.N.'s extreme difficulties. But it cannot be concluded on this record that Davis is not competent to foster any child. To the contrary, the record suggests that with additional training and/or mentoring; and with a better match of Davis' abilities and relative inexperience as a foster parent with the pool of children in need of foster care, Davis can be successful, as he appears to have been, in DCF's view, with D.L., and that some foster children would be able to make progress in his home.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order dismissing the April 1, 2002, charges against Davis.
DONE AND ENTERED this 9th day of September, 2002, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2002.
Paul F. Flounlacker, Jr., Agency Clerk Department of Children and
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.
