vs.
Respondent.
) Case No. 06-1978
Administrative Law Judge (ALJ) Daniel Manry conducted the formal hearing in this proceeding on October 2, 2006, in Lakeland, Florida, on behalf of the Division of Administrative Hearings (DOAH).
For Petitioners: Arthur C. Fulmer, Esquire
For Respondent: Jerome F. Major, Esquire
The issue is whether Respondent should renew Petitioners' license to operate a family foster home.
By certified letter dated April 14, 2006, Respondent notified Petitioners of Respondent's intent to deny their application to renew their license as a family foster home. Petitioners timely requested a formal hearing. Respondent referred the case to DOAH to conduct the hearing.
At the hearing, Petitioner presented the testimony of five witnesses and submitted 13 exhibits for admission into evidence. Respondent presented the testimony of six witnesses and submitted six exhibits for admission into evidence.
The identity of the witnesses and exhibits, and the rulings regarding each, are reported in the two-volume Transcript filed with DOAH on October 24, 2006. Pursuant to agreement, the parties timely filed their respective proposed recommended orders (PROs) on November 27, 2006.
Respondent is the state agency responsible for licensing and regulating family foster homes. Respondent first licensed Petitioners to operate a family foster home on
April 11, 2003.
Respondent renewed Petitioners' license in April 2004.
Petitioners began accepting foster children into their home shortly after the renewal of their license in April 2004.
Respondent renewed Petitioners' license on April 14, 2005. Petitioners were required to renew their license before April 14, 2006.
Petitioners timely applied for the renewal of their license before April 14, 2006. Respondent denied the application for renewal by letter dated April 14, 2006 (notice of denial).
The notice of denial alleges that child abuse involving a child identified in the record as C.S. violated safety standards in Florida Administrative Code Rule 65C-13.010. The notice of denial states, in relevant part:
. . . The decision to deny your foster care license is based on the following reason:
On or about 12/19/05 one of your foster children, C.S., was brought to the emergency room with a fractured left elbow. The night before while sleeping, the [sic] Ann Holt heard C.S. crying and went into her room to pick her up so she wouldn't wake up another child. C.S. and the other child shared the same bedroom. While Ms. Holt was removing
C.S. from the crib she heard a pop. During the next morning C.S. complained of pain. Foster care mother called child's pediatrician and got an appointment at
3:30 PM where the doctor advised Ms. Holt to take C.S. to the emergency room. The foster mother brought C.S. to Lakeland Regional Medical Center at 8:15PM on 12/20/05.
Child Protection Team Medical Director, Dr. William Brooks, reviewed the emergency room records and child's x-rays and concluded the injury was child abuse.
Dr. Brooks sought a second opinion from
Dr. Guidi, a pediatric radiologist at Tampa General Hospital. Dr. Guidi also concurred with Dr. Brook's findings. Both doctors agreed that the injury required significant pulling force and could not be considered accidental.
It is the responsibility of the Central Zone Licensing Office to make a determination whether a foster home is in compliance with the standards for licensure set forth in the Florida Administrative Codes [sic] and the Florida Statutes. Your lack of compliance with safety standards towards the foster children that were in your home at the time of the incident which are governed by Florida Administrative Code 65C13.010 [sic] prohibits the Department from re-licensing your home.
Please note that pursuant to Florida Statutes 409.175, the Department may deny, suspend, or revoke a license for noncompliance with the requirements for licensure. . . .
Petitioners do not dispute most of the factual allegations in the notice of denial. However, Petitioners dispute that the injury suffered by C.S. was the result of child abuse.
The trier of fact finds that a preponderance of the evidence shows the injury to C.S. did not require "significant pulling force" and could be accidental.1 The trier of fact weighed expert medical testimony presented by each party concerning the issue of child abuse.
Neither of the two medical experts who testified for Respondent actually examined C.S., and neither is an
orthopedist. One physician is a "pediatric ER doctor" at Tampa General Hospital in Tampa, Florida. The other physician is a pediatric radiologist.
The pediatric radiologist who reviewed the X-rays could not quantify the force required to cause such an injury, but stated that the mere lifting of a child of 25 pounds could cause such a fracture. He had no independent recollection of reviewing the X-rays, had never seen the child, and based his testimony on the report of the other non-treating physician that testified for Respondent.
The expert who testified for Petitioners is an orthopedist, was the treating physician for C.S., and was the only expert witness that actually examined C.S. The treating physician has over 30 years' clinical experience diagnosing and treating orthopedic injuries.
The treating physician is a Fellow of the Royal Academy of Physicians and Surgeons in Ireland; a Fellow of the Royal Academy of Surgeons in Scotland; and a Fellow of the British Orthopaedic Association in England. The treating physician has practiced in the United States since 1975, was Chief of Orthopedics at the VA Medical Centers in Gainesville and Bay Pines, Florida, and was an assistant professor in the colleges of medicine at the University of Florida and the University of South Florida.
The testimony of the treating physician was credible and persuasive. The treating physician's clinical experience with C.S., and his extensive experience in diagnosing and treating similar types of injuries in children assisted the trier of fact in resolving the relevant factual dispute between the parties. In addition, the trier of fact found the testimony of Petitioner, Ann Holt, the foster mother and the only witness present at the time of the alleged abuse, to be credible and persuasive.
Mrs. Holt was in her bedroom at approximately 11:00 p.m. on December 19, 2005, when she heard a frantic cry
from C.S. Petitioner, Michael Holt, the foster father, did not hear the cry or witness the incident because he was in the shower at the time.
Mrs. Holt hurried down the hallway to the bedroom that
C.S. shared with another baby girl. C.S. was approximately
19 months old, and the roommate was approximately 11 months old.
C.S. and her roommate each had separate cribs.
The roommate was ill, and Mrs. Holt feared C.S. would awaken the roommate. Mrs. Holt reached into the crib where C.S. was crying and picked up C.S. by her left arm, held her to her shoulder with both hands, and took her out of the room.
The manner in which Mrs. Holt lifted C.S. from the crib was somewhat awkward. While Mrs. Holt was lifting C.S.,
C.S. slipped slightly, but Mrs. Holt retained her grip on the left arm of C.S.
The awkward lift caused an injury to C.S. that was diagnosed by an emergency room physician on December 20, 2005, as a metaphyseal chip fracture of the left distal humerus, with elbow joint effusion (fractured elbow). Pursuant to the instructions of the emergency room physician, Mrs. Holt took
C.S. to the treating physician on December 22, 2005.
The treating physician confirmed the diagnosis and placed C.S. in a cast for several weeks. C.S. recovered without complication and returned to full range of motion.
The medical experts for Respondent testified that the injury could only have been caused by excessive force consistent with abuse. However, the treating physician determined the fracture was not a significant injury, did not require extraordinary force, and was not related to abuse.
The fracture suffered by C.S. was a small chip about a millimeter thick that can occur with "relatively minimal force." A fracture like that suffered by C.S. can be inflicted by the child rolling over in bed without any outside cause.
If the fracture were higher up the humerous bone, it may have been consistent with child abuse because of the significant force necessary to cause an injury at that location. In this case, however, the area of injury is near or in the area
of the child's growth plate that is more fragile and susceptible to injury.
C.S. did not cry in response to the injury. Rather,
C.S. stopped crying when Mrs. Holt lifted C.S. from her crib and held C.S. to Mrs. Holt's shoulder. That night, C.S. used both hands to drink from her "sippy cup."
The next day, December 20, 2005, Mrs. Holt observed that C.S. was not using her left hand to hold her "sippy cup." Mrs. Holt also observed some favoring of the left arm and some swelling.
Mrs. Holt reported the incident to the licensing retention counselor and arranged an appointment with a pediatrician. The pediatrician referred C.S. to the emergency room. Mrs. Holt took C.S. to the emergency room and remained with C.S. for support and reassurance. Mrs. Holt and C.S. returned home from the emergency room at approximately 5:00 a.m. on December 21, 2005.
On December 29, 2005, Respondent removed the three foster children residing with Petitioners. Respondent has not placed any other foster children with Petitioners.
Petitioners did not fail the required screening described in Subsection 409.175(6)(h), Florida Statutes (2005). Respondent never conducted the required screening.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter in this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006). DOAH provided the parties with adequate notice of the formal hearing.
The burden of proof is on Respondent.2 Coke v.
Department of Children and Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998). Respondent must satisfy its burden of proof by a preponderance of the evidence. § 409.175(1)(f), Fla. Stat. (2005)(providing that the subject license is not a professional license and does not create a property interest). Compare Coke, 704 So. 2d at 726 (license to operate family day care license) Dubin v. Department of Business Regulation, 262 So. 2d 273, 274 (Fla. 1st DCA 1972)(horse trainer license); and Bank of Credit
and Commerce International (Overseas) Limited v. Lewis, 570 So. 2d 383, 385 (Fla. 1st DCA 1990)(license to operate agency office), with Mayes v. Florida Department of Children and Family Services, 801 So. 2d 980, 981 (Fla. 1st DCA 2001) (application to transfer previously issued foster care license to residence in a different county is an application for a new license and applicant must prove entitlement by a preponderance of the evidence).
Respondent did not satisfy its burden of proof.
Respondent failed to show by a preponderance of evidence that
the injury to C.S. "required significant pulling force and could not be considered accidental." Rather, a preponderance of evidence shows the injury did not require significant pulling force and could be considered accidental.
The non-renewal of a license must be supported by specific factual findings based on record evidence. The findings must show how the alleged use of significant pulling force violated statutes or rules or otherwise justified the non- renewal of the license. See Mayes, 801 So. 2d at 982 (ALJ must make specific findings indicating how licensee's use of lock violated statutes or rules or otherwise justified denial of application).
Florida Administrative Code Rule 65C-13.010 is the specific rule allegedly violated by Petitioners. The notice of denial alleges, in relevant part:
Your lack of compliance with safety standards towards the foster children that were in your home at the time of the incident which are governed by Florida Administrative Code 65C13.010 [sic] prohibits the Department from re-licensing your home.
Florida Administrative Code Rule 65C-13.010(1)(b)6.b. and d. prescribe the only safety standards relevant to the facts in this proceeding. The rule states, in relevant part:
b. The substitute care parents are expected to transport children for medical, dental or other appointments which may be needed.
They are to remain with the child if needed for support and reassurance. . . .
* * *
d. The substitute care parents must immediately report to the department any serious changes in the health or mental health of a child.
The notice of denial does not allege that Petitioners failed to comply with quoted provisions of the rule. Rather, a preponderance of evidence shows that Petitioners transported
C.S. for needed medical appointments and remained with the child for support and reassurance; and that Mrs. Holt immediately reported the injury to C.S.
Subsections 409.175(6)(h) and (i), Florida Statutes (2005), relates to re-licensure of family foster homes and provides, in pertinent part:
(h) . . . a license may not be issued or renewed if any person at the home or agency has failed the required screening. . . .
The undisputed evidence shows that Respondent never conducted the required screening.
Subsection 409.175(9)(b)1., Florida Statutes (2005), provides in relevant part:
(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.
Lifting C.S. from her crib by one arm arguably may be a negligent act that materially affected the health of C.S. without "significant pulling force." However, the notice of denial does not include such an allegation as a ground for non- renewal. Nor does the evidence submitted by Respondent address the issue of whether lifting C.S. from her crib by one arm was a negligent act in the absence of "significant pulling force."
The scope of this proceeding is limited to the factual grounds and violations alleged in the notice of denial. Petitioner cannot find Respondent guilty of a charged violation based on evidence of grounds not specifically alleged in the notice of denial. Cf. Thomas P. Trevisani, M.D. v. Department
of Health, Case No. 1D04-2488 (Fla. 1st DCA July 20, 2005); Ghani v. Department of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); and Cotrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996) (each involving an administrative complaint in a license discipline proceeding).
In Cotrill, the court reversed a finding that the licensee violated statutes referred to in the administrative complaint based on factual grounds not alleged in the complaint. Judge Benton explained:
Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint . . . violates the Administrative Procedure Act. To countenance such a procedure would render nugatory the right to a formal administrative proceeding to contest the [factual] allegations. . . .
Cotrill, 685 So. 2d at 1372.
RECOMMENDED that Petitioners' application to be re-licensed as a family foster home be GRANTED.
DONE AND ENTERED this 26th day of December, 2006, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2006.
1/ The stated grounds for denial make the amount of force applied to lift C.S. from her crib the fulcrum of decision in this proceeding. The notice of denial alleges that the injury required "significant pulling force" and "could not be considered accidental." The notice of denial does not allege that lifting C.S. from her crib by one arm is abuse irrespective of whether the pulling force was significant. Nor does the evidence submitted by Respondent address that issue. Lifting
C.S. from her crib by one arm, rather than by placing two hands under her arms, arguably may be an act of abuse. However, the trier of fact cannot substitute his opinion for that of the experts, cannot base findings on evidence not submitted by Respondent, and cannot recommend non-renewal for grounds not alleged in the notice of denial.
2/ Respondent admits in its PRO in paragraph 43 of the conclusions of law that Respondent has the burden of proof. Petitioner argues that the standard of proof should be a clear and convincing. However, the license at issue is not a professional license, the license does not represent a property interest that would require Respondent to prove the grounds for non-renewal by clear and convincing evidence. In any event the issue is moot in this proceeding because the trier of fact finds that a preponderance of evidence shows the injury to C.S. did not require "significant pulling force" and could be considered accidental.
Arthur C. Fulmer, Esquire 1960 East Edgewood Drive Lakeland, Florida 33803
Jerome F. Major, Esquire Department of Children and
Luci D. Hadi, Secretary 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.
