STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

CARL ATWATER AND )

RUBY ATWATER, )

)

Petitioners, )

)

vs. ) Case No. 05-1673

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 22, 2005, in Yulee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Carl Atwater and Ruby Atwater, pro se (Address of Record)

For Respondent: Robin Whipple-Hunter, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Department of Children and Family Services properly revoked the foster home license of Carl and Ruby Atwater.

PRELIMINARY STATEMENT

By letter dated April 7, 2005, the Department of Children and Family Services (Department) advised Petitioners, Carl Atwater and Ruby Atwater, that the Department was revoking their license as a substitute care provider for foster children for failure to comply with the Foster Care Bilateral Agreement by leaving foster children in the care of providers who had not been approved through background screening. The Department cited as authority Section 409.175(8)(a), Florida Statutes. 1/

Petitioners disputed the revocation and requested an administrative hearing. The Department forwarded the request for hearing to the Division of Administrative Hearings on or about May 11, 2005. A formal hearing was scheduled for July 22, 2005.

At hearing, Petitioners testified on their own behalf and presented the testimony of Betty Williams and Alice Jones.

Petitioners did not present any exhibits. Respondent presented the testimony of Janet McMahan, Rachel Steele, and Shirley Leggio. Respondent's Exhibits numbered 1 through 8 were admitted into evidence.

The hearing was not transcribed. Neither Petitioner nor Respondent filed any post-hearing submission. All references to the Florida Statutes are to 2004 unless otherwise indicated.

FINDINGS OF FACT

1. At all times material to this proceeding, the home of Carl and Ruby Atwater (the Atwaters) was licensed by the Department as a foster home. The initial license was issued on February 9, 2004. In 2005, the Department's program for licensing and background screening was outsourced to Family Matters of Nassau County (Family Matters). The most recent certificate of licensure, No. 0205-46-2, was issued by the Department on February 9, 2005.

2. Prior to licensure, the Atwaters were background screened and were cleared. Mrs. Atwater remembers turning in a fingerprint card for her mother, Martha Nelson, at the time of the Atwaters' initial training sessions prior to the first license being issued. The Atwaters believed that Mrs. Nelson had been cleared through background screening from the beginning. In reliance upon this belief, Mrs. Nelson provided day care from time to time for foster children placed in the Atwaters' care.

3. At some point, a close family friend and neighbor, Alice Jones, submitted fingerprints for background screening. Her fingerprints were sent back to the Department from law enforcement in December 2004 because they were not legible. The Atwaters were unaware of this and assumed that Ms. Jones had been cleared. In reliance upon this belief, Ms. Jones provided

   day care from time to time for foster children placed in the Atwaters' care.

4. The Department mistakenly believed that Ms. Jones was Mrs. Atwaters' mother. It was clear to the undersigned that the Department learned at the hearing that Ms. Nelson is

   Mrs. Atwaters' mother.

   
   

5. Rachel Steele is the program coordinator of Family Matters for licensure of foster homes. She conducted the re- licensing study of the Atwaters' home. She initially went to their home on January 5, 2005, but no one was home. She rescheduled the home study for January 14, 2005. Both Mr. and Mrs. Atwater were there.

6. During the home study, Ms. Steele gathered information from the Atwaters as to who was watching the foster children. Because Ms. Jones had not been cleared through a fingerprint background check, she explained that a newer, faster fingerprint processing procedure was available for Ms. Jones. In any event, she explained to the Atwaters that Ms. Jones could no longer provide child care services for foster children until she was background cleared.

7. At the time of the home study, there were no foster children placed in the home. According to Ms. Steele, Family Matters would not place any foster children in the Atwaters' home until this matter was cleared up.

8. Despite this assertion, children were placed in the Atwaters' home on January 16, 2005, just two days after the home study visit. According to Ms. Steele, Boys' Home placed the children with the Atwaters without the knowledge of Family Matters. She called the Atwaters on January 18, 2005, and again on January 20, 2005. On the later call, she left a message that she still needed more information regarding Ms. Jones.

9. On January 25, 2005, Ms. Steele wrote a letter to the Atwaters informing them that their foster home license would be placed on inactive status, "due to your failure to comply with Family Matters policy and procedure relating to caregivers for foster children." The letter further explained that it is Family Matters' policy that caretakers are allowed to come into the foster home setting to care for children as long as they have had a background check through Family Matters.

10. In response to that letter, Ms. Steele received a phone call on January 26, 2005, from either Mr. or Mrs. Atwater during which Ms. Jones' provision of care for the foster children was discussed.

11. Subsequent to the January 26, 2005, telephone conversation, Shirley Leggio, Ms. Steele's program assistant, sent out a letter and check for Jones to be "livescanned," the newer fingerprinting procedure. Ms. Steele only found out on

    July 18, 2005, that the check was returned. Family Matters has no record that Ms. Jones ever received background clearance.

12. Shirley Leggio went to the Atwaters' home on March 28, 2005, for a monthly home visit. When she went to the door, no one was home. She went to Ms. Jones' home, which is located very near the Atwaters' home, and found the foster children there in Ms. Jones' care. Ms. Leggio then took the children to Fernandina Beach and returned the children to the Atwaters around 8:00 pm. Mr. Atwater was home at that time. She reported all of this to Ms. Steele.

13. There is no dispute that Ms. Jones provided care for the foster children in the Atwaters' care during the time the home was licensed. When asked if she had been fingerprinted, she replied that she had, "at the county building and the jail, too."

14. Mr. Atwater believes that the circumstances that gave rise to this dispute is a misunderstanding. The undersigned agrees.

15. Both Mr. And Mrs. Atwater insist that they believed that Ms. Jones had been cleared. Their testimony in this regard is credible and accepted. Ms. Jones had been fingerprinted, on more than one occasion. The check to cover the newer fingerprinting process was returned to the Department,

    indicating that Ms. Jones did not receive the necessary information let alone did the Atwaters become aware of it.

16. Further, Ms. Atwater remembers turning in her mother's fingerprints during her initial training. She believed that her mother, Ms. Nelson, had been cleared from the beginning. Her testimony regarding this is credible and accepted.

17. Ms. Steele recommended revocation of the Atwaters' license to the Department. On April 4, 2005, the Department issued a revocation letter to the Atwaters which gave rise to this proceeding.

18. The Bilateral Service Agreement, referenced in the April 4, 2005, revocation letter and signed by Family Matters and the Atwaters, states that foster children may not remain in an unlicensed setting without the explicit approval of the

    Department.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.57(1), Fla. Stat.

20. The Department of Children and Family Services is the agency charged with the responsibility of licensing foster homes in the state of Florida. § 409.175, Fla. Stat.

21. Subsection 409.175(9), Florida Statutes, reads in pertinent part as follows:

    (9)(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.

       
       

    2. A violation of the provisions of this section or of licensing rules promulgated pursuant to this section.

    
    

22. The Department seeks the revocation of the foster home license of Carl and Ruby Atwater. 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, 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 the Atwaters 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 license cases. Department of Banking and Finance v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996).

23. The Department did not meet its burden. The preponderance of the evidence did not establish that the Atwaters' license should be revoked. The preponderance of the evidence established sufficient confusion regarding the material facts herein, on the part of both parties, to warrant the Atwaters retaining their license.

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 rescinding its April 4, 2005, letter of revocation, return the Atwaters' foster home to inactive status until such time that the caregivers have received the appropriate background screening and clearance, at which time the foster home license should be reinstated.

DONE AND ENTERED this 15th day of August, 2005, in Tallahassee, Leon County, Florida.

S

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 15th day of August, 2005.

ENDNOTE

1/ The April 4, 2005, revocation letter references Subsection 409.175(8)(a), Florida Statutes, but then clearly references the language of subsection (9).

COPIES FURNISHED:

L. M. K.

(Address of Record)

Robin Whipple-Hunter, Esquire Department of Children

and Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Gregory Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204B 1317 Winewood Boulevard

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: 05-001673

Orders for Case No: 05-001673