STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD BRYSON AND JOYCE BRYSON, )

)

Petitioners, )

)

vs. )

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

Case No. 02-4056

)

RECOMMENDED ORDER

Notice was provided, and on December 13, 2002, a formal hearing was held in this case, in Largo, Florida, and was conducted by Fred L. Buckine, Administrative Law Judge, Division of Administrative Hearings. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida

Statutes.

APPEARANCES

For Petitioners: Mark A. Goettel, Esquire

5623 U.S. Highway 19, Suite 107 New Port Richey, Florida 34652

For Respondent: Frank H. Nagatani, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 314

Largo, Florida 33778-1630

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioners, foster parents trained in the care of children with medical disabilities, permitted a two-year-old medically disabled deaf child to be unattended during a brief conversation, resulting in the child's later being found facedown in the family's swimming pool; and as a result of that near-drowning experience is permanently on a life support system, are guilty of having committed an intentional or negligent act materially affecting the health or safety of the medically disabled child.

PRELIMINARY STATEMENT

Following Respondent's (Agency) letter dated July 30, 2002, of its decision of revoke Petitioners' foster home license, Petitioners filed a request for a fair hearing to appeal the Agency's action, pursuant to Section 120.54(5)(d)4, Florida Statutes. The matter was referred to the Division of Administrative Hearings on October 18, 2002, and was set for a de novo hearing on December 13, 2002, in Largo, Florida, by Order of November 5, 2002.

At the formal hearing on December 13, 2002, Petitioners presented the testimony of the foster mother, Joyce Bryson, and offered no exhibits in evidence. Respondent presented the testimony of six witnesses: Peggy Goodell, James Kliensorge, Mark Friedline, Ronda Smith, Alma Taylor, and Dana Curley, and

introduced two composite exhibits (R-1 and R-2) in evidence without objection. A Transcript of the proceeding was filed on January 3, 2002. Proposed recommended orders were due on or before January 15, 2002. The parties' request for more than ten days after the filing of the transcript to submit proposed recommended orders, which was granted, waived the requirement that this Recommended Order be entered within 30 days of receipt of the hearing transcript. Rule 28-106.216, Florida Administrative Code. Both parties timely filed their proposed recommended orders, which have been considered by the

undersigned.

FINDINGS OF FACT

Based upon the demeanor of the witnesses while testifying, exhibits admitted in evidence, and the arguments of the parties, the following relevant, material, and substantive facts are found:

1. Respondent is the state agency responsible for licensing and regulating foster care in the state. Petitioners were granted a medical foster care license on August 31, 2000, after making application with Help-A-Child, Inc., and being approved by the Department under Section 409.175, Florida Statutes.

2. At all times material to this case, Petitioners, Ronald Bryson and Joyce Bryson, husband and wife, resided at

   1476 Highland Circle, in Pinellas County, Florida. Petitioners completed required training in fostering medically needy foster children, and medically needy children were placed with Petitioners through Help-A-Child, a placement agency that specialized in placing medically needy children with special trained foster parents. Petitioners fostered three medically needy children. One medically needy child fostered by Petitioner was A.S., born on April 21, 2000. A.S. suffered with Wardensburg Syndrome (genetic deafness), microcephalic, developmental delays, weakness of motor skills, short stature, and had been in Petitioners' foster care for 14 months, from February 2001 to April 17, 2002, until removed because of a near-drowning incident on April 17, 2002.

3. On April 17, 2002, while fostered at Petitioners' family residence, A.S. was found facedown in Petitioners' swimming pool. The swimming pool is not attached to the family residence. After removing A.S. from the pool, Cardio Pulmonary Resuscitation (CPR) was administered, 911 called, and A.S. was Bayflighted to a hospital in Broward County, Florida. Upon her arrival at the Broward County hospital A.S. was placed on a life support system where she shall remain indefinitely.

4. In response to the 911 call, Sergeant Torres, Clearwater Police Department, along with the patrol office, were the first law enforcement personnel on the scene. Detective

   Kliensorge, accompanied by Detective Fellicci, arrived shortly thereafter. Detective Kliensorge conducted the initial investigation of A.S.'s near-drowning incident. The record evidence establishes the incident to have occurred sometime between 5:00 p.m. and 5:15 p.m. on April 17, 2002.

5. Petitioner, Joyce Bryson, recalled the following sequence of events leading up to the near drowning of A.S. She and her two grandchildren, Cazi and Izac, had been in the back yard in the swimming pool. She escorted her two grandchildren from the swimming pool through an aluminum screen door onto the patio and through a sliding glass door into the kitchen. After they were in the kitchen, Joyce Bryson instructed her grandchild, Cazi, "to close the door." Joyce Bryson assumed Cazi or Izac closed the sliding glass door and further assumed that the sliding glass door leading into the kitchen and the aluminum screen door on the back porch were both locked. Joyce Bryson did not personally check to ascertain whether the sliding glass door or the aluminum screen door was locked after entry by she and her grandchildren.

6. Once in the kitchen, Joyce Bryson began cooking chicken nuggets and French fries for her grandchildren's birthday dinner. During this time in the kitchen, A.S. was in her sight and in her presence.

7. Joyce Bryson finished cooking the chicken nuggets and French fries. She then seated her grandchildren and at the dining room table. She then lifted Savannah, another foster child, out of her swing set and placed Savannah in her highchair. During these several activities, A.S. was constantly at her side.

8. After Joyce Bryson seated her grandchildren at the dining table; Matt Wolfe, the prospective adoptive parent of Savannah, came into the kitchen. Upon his arrival, Joyce Bryson took Savannah out the highchair and gave her to Matt Wolfe who held her in his arms. With Matt Wolfe holding Savanna, he and Joyce Bryson engaged in a short conversation.

9. At some point during the conversation with Matt Wolf, Joyce Bryson became aware that A.S. was no longer in her presence or within her sight. Joyce Bryson asked of everyone "Where is Angela?" Ronald Bryson, her husband; Mr. Wolf; and her two grandchildren looked about the house for A.S.

10. After an undetermined amount of time, but not more than five minutes,1 A.S. was found face down in the swimming pool by one of Joyce Bryson's grandchildren.

11. In a time span of approximately two to eight minutes, A.S., with weak motor skills, traveled unnoticed from the kitchen area, across the back porch into Petitioners' swimming pool. Due to A.S.'s deafness, Joyce Bryson's minimum duty of

    care required A.S. to be within her presence or within her sight at all times.

12. During the time interval when Joyce transferred Savannah from her swing to her highchair and from her highchair to Mr. Wolf's arms followed by her conversation with Mr. Wolf, Joyce Bryson did not have A.S. within her sight, and the near drowning incident occurred.

13. But for Joyce Bryson's lack of attention to A.S.'s whereabouts during the time period she was moving Savannah from her swing to her highchair and from her highchair to Mr. Wolf's arms, followed by her conversation with Mr. Wolf, A.S. would not have been able to move from her side into the swimming pool, unobserved. I find that Joyce Bryson's negligent lapse of attention to be the primary cause of A.S.'s near-drowning episode.

14. Based upon the Findings of Fact herein above, Respondent has proven that Petitioners committed a negligent act materially affecting the health or safety of the medically

    disabled child, A.S.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57, Florida Statutes.

16. Section 409.175(8)(a) and (b)1, Florida Statutes, provides that:

    (8)(a) The department may deny, suspend, or revoke a license.

    
    

    (b) Any of the following actions by a home or agency or its personnel is a ground for denial, suspension, or revocation of a license:

    
    

    1. An intentional or negligent act materially affecting the health or safety of children in the home or agency.

    
    

17. Rule 65C-13.011(12)(c), Florida Administrative Code, provides that:

    (c) Swimming pools must have a barrier on all four sides of at least four feet. The barrier may consist of a house plus a fence on the remaining three sides or a four-sided fence. All access through the barrier must have one of the following safety features: alarm, key lock, self-locking doors or a bolt lock that is not accessible to children. When the swimming pool is not in use, all entry points must be locked. Above ground pools must have steps or ladders leading to it secured, locked, or removed when the pool is not in use. Hot tubs and spas shall be required to have a safety cover that is locked when not in use.

    
    

18. The party seeking affirmative relief (Petitioners or Respondent) has the burden of proof in this proceeding. Respondent must show by a preponderance of the evidence that Petitioners committed the specific acts and/or omissions alleged in the Administrative Complaint. Florida Department of Transportation v. JWC Company, Inc., 396 So. 2d 778 (Fla. 1st

    DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). A "preponderance" of the evidence is defined as "the greater weight of the evidence," of evidence that "more likely than not" tends to prove a certain proposition. Gross v. Lyons, 736 So. 2d 276, 280 n.1 (Fla. 2000).

19. "Competent substantial evidence" has been described as such evidence as a reasonable person would accept as adequate to support a conclusion. Agrico Chem. Co., 365 So. 2d at 763; see also De Groot v. Sheffield, 95 So. 2d 912, 915 (Fla. 1957) (defining "competent substantial evidence" as "such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred" and "such relevant evidence as a reasonable mind would accept to support a conclusion.").

20. Respondent has carried its burden of proof by a preponderance of competent substantial evidence. The evidence clearly established that Petitioners were negligent in their supervision of A.S. First, A.S. was out of Petitioners' sight and supervision during the time taken by Joyce Bryson to seat the grandchildren at the dinner table; to move another child from her swing to her highchair and upon the arrival of

Mr. Wolf; to move that child from her highchair to Mr. Wolf's arms; and thereafter engaging in conversation with Mr. Wolf. Second, Petitioners failed their supervisory responsibility to

A.S. by failing to ensure that all doors leading to access to the swimming pool, at all times when the pool was not in use, were locked. But for foregone negligent supervision by Petitioners, A.S. would not have become the victim of a near drowning in Petitioners' swimming pool, and be on indefinite life-support.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that:

The Department of Children and Family Services enter a final order affirming revocation of Petitioners' license.

DONE AND ENTERED this 29th day of January, 2003, 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 29th day of January, 2003.

ENDNOTE

1/ The two-to-five minutes time is the opinion testimony of Detective Kliensorge, based upon his training and experience in

investigations of robbery and homicides. Having investigated homicide by drowning, he opined that a child in a normal healthy state would possibly hold his or her breath for two to four minutes before drowning by death occurred. Given time to move from her location in the home, through the kitchen door, onto the porch and into the pool where she was found when coupled with her not drowning, he estimated no more than two to three minutes maximum, in the pool. The other two or three minutes the time estimated for A.S. to get to the pool. This opinion testimony was uncontested and accepted.

COPIES FURNISHED:

Mark A. Goettel, Esquire 5623 US Highway 19, Suite 107

New Port Richey, Florida 34652

Frank H. Nagatani, Esquire

Department of Children and Family Services 11351 Ulmerton Road, Suite 314

Largo, Florida 33778-1630

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: 02-004056

Orders for Case No: 02-004056