STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 02-2981

)

REBER CARSWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Pierce, Florida, on October 1, 2002.

APPEARANCES

For Petitioner: Laurel Hopper

Department of Children and Family Services

337 North 4th Street

Fort Pierce, Florida 34950

For Respondent: Lyn Carswell, Qualified Representative

2101 Avenue P

Fort Pierce, Florida 34950 STATEMENT OF THE ISSUE

The issue is whether Petitioner may revoke Respondent's foster home license for her use of corporal punishment in violation of Rule 65C-13.010(1)(b)5.f, Florida Administrative Code.

PRELIMINARY STATEMENT

By letter dated June 5, 2002, Petitioner informed Respondent that it intended to revoke her foster home license due to her use of corporal punishment, which violated Rule 65C-13.010(1)(b)5.f, Florida Administrative Code. Respondent requested a hearing.

At the hearing, Petitioner called four witnesses and offered into evidence ten exhibits: Petitioner Exhibits 1-10. Respondent called four witnesses and offered into evidence no exhibits. All exhibits were admitted except Petitioner Exhibits 3, 4, and 8, which were proffered.

The parties did not order a transcript or file proposed recommended orders.

FINDINGS OF FACT

1. Respondent has been a mother for 45 years. Five years ago, she became a foster parent because her children were grown and other children needed homes. As a foster parent, Respondent has cared for more than a dozen foster children.

2. Due to an unrelated incident in the summer of 2001, Petitioner's representative counseled Respondent about the prohibition against the use of corporal punishment against foster children. At that time, Respondent signed a Therapeutic Foster Care Agreement, statement of Discipline Policy, and Agreement to Provide Substitute Care for Dependent Children.

   Each of these documents restates the prohibition against the use of corporal punishment.

3. In March 2002, Respondent took her 10-year-old foster child in her care to a McDonalds restaurant to meet his mother, who had been forced to place him in foster care due to his aggressive behavior. The mother and her three daughters were at a table with Respondent, the foster child, and another child. The foster child began to misbehave and Respondent warned him that she was the law and, if he failed to behave, she would drop him off at the detention center. Respondent is a uniformed crossing guard and is employed by the St. Lucie County Sheriff's Office.

4. In response to Respondent's warning to behave, the child replied, "You're not the law. You're just a crossing guard." Respondent slapped the foster child in the mouth. The force of the slap to the mouth did not cause the child to cry, but did leave a red mark.

5. The mother reported the incident to Petitioner. In dealing with cases of corporal punishment administered to foster children, Petitioner does not invariably revoke the foster parent's license. Instead, Petitioner attempts first to determine the likelihood that the foster parent can be rehabilitated so as not to use corporal punishment.

6. Among the factors justifying revocation are that Petitioner had recently reinforced the corporal punishment prohibition with Respondent, Respondent displayed a blatant disregard or ignorance of the policy by striking the child in front of his mother, and Respondent falsely denied the incident during the course of the investigation and at the hearing. In some respects, the last factor is the most serious because Respondent's lack of candor and remorse for the incident undermine the trust that Petitioner necessarily places in foster parents whom it licenses.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

8. Section 409.175(9)(a) authorizes Petitioner to revoke a foster home license. Section 409.175(9)(b)2 authorizes the revocation for a violation of the licensing rules promulgated by Petitioner.

9. Rule 65C-13.010(1)(b)5.f provides: "The substitute care parents must not use corporal punishment of any kind." Although not charged with this offense, Respondent, in threatening to send the child to the detention center, also

   violated Rule 65C-13.010(1)(b)5.m, which provides in part: "The substitute must not threaten a child with removal or with a report to authorities as punishment for behavior. Threatening the child with removal plays into the child's conviction that they are doomed to a series of placements and rejections.

   . . ."

   
   

10. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

11. Petitioner has proved by clear and convincing evidence that Respondent violated the rule against corporal punishment and did so under circumstances suggestive of a blatant disregard or ignorance of the rule or its enforcement. Respondent's failure to accept responsibility for her act necessitates revocation due to the special trust placed in foster parents.

RECOMMENDATION

It is

RECOMMENDED that the Department of Children and Family Services enter a final order revoking Respondent's foster home license.

DONE AND ENTERED this 12th day of December, 2002, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 12th day of December, 2002.

COPIES FURNISHED:

Paul Flounlacker, Jr., 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 204B Tallahassee, Florida 32399-0700

Laurel Hopper

District 15 Legal Counsel Department of Children and

Family Services

337 North 4th Street

Fort Pierce, Florida 34950

Lyn Carswell, Qualified Representative 2101 Avenue P

Fort Pierce, Florida 34950

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: 02-002981

Orders for Case No: 02-002981