STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

BARBARA HAINES,

Respondent.

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) Case No. 06-3815

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on December 18, 2006, in Palm Bay, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Richard Cato, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782

For Respondent: Barbara A. Haines, pro se

882 Brittan Avenue

Palm Bay, Florida 32909 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's foster care license should be revoked for violating Florida Administrative Code Rule 65C-13.010.

PRELIMINARY STATEMENT

Respondent was notified by letter dated September 19, 2006, that the Department of Children and Family Services (DCFS or Petitioner) was revoking her foster care license. On

September 22, 2006, Respondent notified DCFS that she wished to contest the revocation and wanted a formal administrative hearing. The matter was forwarded to the DOAH and assigned to the undersigned.

The initial revocation letter to Respondent stated the following grounds:

The Department of Children and Families received an abuse report on March 31, 2006, concerning you and one of your foster children (9 year old child with Downs Syndrome) residing in your home at that time. The report alleged that you were hitting the child several times about the arms and hands resulting in bruises or marks and that the child had been tied with an elastic type cord to restrain her in a car seat. As part of this investigation, the child was referred to the Child Protection Team for evaluation.

The Child Protection team concluded that the injuries to the child were "consistent with being struck with a linear, flexible object." In addition, the child was observed with older bruising, which per the Child Protection Team "is concerning [sic] for chronic physical abuse." This child had been placed in your home for approximately one year.

At the final hearing held on December 18, 2006, Petitioner presented the testimony of Summer Bray, child protective investigator; Maria Bonnett, nurse practitioner; and

Amy Hammett, family services specialist. Petitioner also offered into evidence six exhibits identified as A, B, C, D, E and F. Exhibits B and C contain photos of the alleged victim and were accepted into evidence but will remain sealed in accordance with Section 415.107, Florida Statutes (2006).1 Respondent testified on her own behalf and presented the testimony of Susan Aliberti, teacher; Judy Houser; Teresa Miles, executive director of Children's Home Society; Arlene Clarke, case manager; Margaret Meunier, Medicaid foster care supervisor for Children's Medical Society; and Carol Jewel, guardian ad litem for the victim. Respondent also offered five exhibits, identified as A through E, all of which were admitted into evidence.

At the close of the evidentiary portion of the final hearing, the parties requested, and were allowed, ten "working days" from the filing of the hearing transcript within which to file their respective proposed recommended orders. A two-volume Transcript of the hearing was filed on January 25, 2007, meaning the proposed recommended orders were due on or before

February 8, 2007. When neither party had submitted a proposed recommended order by that date, they were contacted by DOAH administrative staff and asked to submit their orders on or before February 14, 2007, in order for them to be considered. Petitioner filed a Proposed Recommended Order on February 12,

2007; Respondent filed her Proposed Recommended Order on February 14, 2007. The submitted documents were carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. DCFS is the state agency responsible for, inter alia, licensing and monitoring foster care parents. One of its duties is to investigate all allegations of abuse or neglect concerning children in foster care.

2. Respondent is a 70-year-old female who was licensed on December 15, 2005, to be a "medical foster parent" so that she could care for children with special needs. The alleged victim in this matter, "Joy," had been placed with Respondent on

   June 22, 2005. At that time, Joy was nine years old, had Downs Syndrome, and was not communicative. Joy needed corrective lens, was not very coordinated, and was prone to clumsiness.

   She demanded a considerable amount of care to meet her needs. In September 2005, another child, Beth, began living at the house with Respondent and Joy. The relationship between Joy and Beth was somewhat strained.

3. Respondent previously served as a guardian ad litem for at risk children. She has been a foster parent for approximately nine years. To become a medical foster parent, Respondent underwent training and then applied for licensure by DCFS. She was duly-licensed at the time of the incident in

   question. From the date of her licensure until the alleged incident, Respondent was considered a very good provider of care. There were no indications that she would be abusive to children in her care.

4. When necessary, Respondent disciplined children in her care by withholding toys, placing them in time-out, and denying television/radio privileges. She did not utilize corporal punishment.

5. From March 27 through 31, 2006, Joy and Beth attended a Spring Break Day Camp for Children with Disabilities. On Friday, March 31, 2006, Respondent picked up Joy and Beth from the day camp at Eau Gallie High School. On the way home, Respondent had to stop the car several times and attempt to re- secure Joy's car seat because Joy kept opening it. At one point, Respondent stopped in the parking lot of a local Wal- Mart, got out of the car, and went into the back seat. She proceeded to bang on the seat several times to keep it closed, but to no avail. She then used an elastic bungee cord to secure the seat.

6. Two people in the Wal-Mart parking lot witnessed Respondent's actions. They perceived Respondent to be hitting the child and then use the bungee cord to tie the child's hands. Neither of the witnesses testified at final hearing, and their statements (included in the police report, Petitioner's

   Exhibit F) were not persuasive. It should be noted that despite Petitioner's statement in its Proposed Recommended Order that Respondent was allegedly striking the child with a bungee cord, the initial police report indicates that Respondent was allegedly using "hands, fist and feet" as the means of attack.

   The issue of a bungee cord was only brought up by the police after conducting its follow-up investigation some three or four days later. Respondent herself was the person who advised the investigation team about the existence of the bungee cord.

7. Respondent vividly described the incident to have occurred as follows: After picking up Joy from school, Respondent became frustrated because Joy continued to open the car seat latch. Respondent stopped, attempted to bang the seat cover back down, and scolded Joy. This happened three times during the trip from school to home. On the third occasion, Respondent yelled at Joy and more forcefully banged on the seat cover. When it would not stay latched, Respondent took a bungee cord from the trunk and attempted to secure the seat. During this incident, Joy was upset and crying loudly. (Joy is extremely non-verbal and resorts to yelling and screaming when she is upset.) Respondent was also yelling and was upset.

8. Certain individuals who were in the parking lot contacted the local police, and an investigation was commenced. A determination was made that the alleged perpetrator was a

   foster parent, so DCFS's child protection team was called. They immediately sent a team out to Respondent's home to examine the child and interview Respondent. Upon viewing the bruising on Joy's arms, the DCFS team decided to remove Joy and Beth from Respondent's home pending conclusion of the investigation. Joy was also taken to a local emergency room for medical evaluation, where pictures were taken of her bruises.

9. The pictures, taken a day or two after the incident, do show bruising on Joy's arms and upper body. The bruises appear to be of different ages. Each of the bruises is fairly small, and some are identified by a nurse practitioner as "linear" in nature. In actuality, some of the small bruises are aligned in a row so that they could be called linear, but there are no pictures of bruising in a straight, unbroken line (as would appear if the child had been hit with a cord).

10. Respondent has no history of abusing children in her care. She is held in high regard by the persons who monitor her care of medically needy children. She is one of few medical foster parents available in Brevard County to care for such children.

11. Respondent kept a daily log of her activities with Joy in accordance with DCFS requirements. Those logs show several factors important to the present case: Bruises were noted on Joy's body the day prior to the incident. Respondent had dealt

    with the car seat problem earlier (e.g., on December 29, 2005). Joy would apparently bite and pinch herself and cause bruising. Joy needed glasses, but either intentionally or accidentally broke them very often, leaving her more likely to stumble and fall. The child's aggressive behavior often resulted in physical altercations with other children.

12. The only person to testify at hearing who was present at the time of the alleged abuse was Respondent. Her description of the event was the most credible testimony presented.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

14. DCFS is the agency charged with the responsibility of licensing foster parents in the state of Florida. Subsection 409.175, Florida Statutes, which reads in pertinent part:

    (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:

    
    

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

    
    

15. Florida Administrative Code Rule 65C-13.010 reads in pertinent part:

    1. Responsibilities of the Substitute Parent to the child.

       
       

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       (b) Family Care Activities.

       
       

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       5. Discipline

       
       

       a. The substitute care parents must discipline children with kindness, consistency, and understanding, and with the purpose of helping the child develop responsibility with self-control.

       
       

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       f. The substitute care parents must not use corporal punishment of any kind.

       
       

16. The Department seeks revocation of Respondent's foster care license. 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 Subsection 409.175(2)(f), Florida Statutes, the licensure status previously awarded to Respondent 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 a clear and convincing standard normally imposed in professional licensure cases. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

17. The evidence presented does not establish that Respondent was abusing or administering corporal punishment to the child. Her actions involved a strained and frustrated effort to secure Joy in the car seat, nothing more. It is clear that the allegations are contrary to Respondent's known history of care to Joy and other children. Petitioner has not satisfied its burden in this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered by the Department of Children and Family Services rescinding the revocation of Respondent's foster care license.

DONE AND ENTERED this 21st day of February, 2007, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 21st day of February, 2007.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes (2006), unless otherwise indicated.

COPIES FURNISHED:

Richard Cato, Esquire Department of Children and

Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782

Barbara A. Haines 882 Brittan Avenue

Palm Bay, Florida 32909

Gregory Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Copelan, General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Robert Butterworth, Secretary Department of Children and

Family Services Building 1, Room 202

1317 Winewood Boulevard

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: 06-003815

Orders for Case No: 06-003815