STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on February 7, 2008, in Orlando, Florida, before

Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: T. Shane DeBoard, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1114 Orlando, Florida 32801

For Respondent: Jerry Pitzer, Qualified Representative

5338 North Woodcrest Drive Winter Park, Florida 32792

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's foster care license should be revoked for violating Florida Administrative Code Rules 65C-13.009 and 65C-13.010.1

PRELIMINARY STATEMENT

Respondent was notified by letter dated November 13, 2007, and sent by certified mail on November 14, 2007, that the Department of Children and Family Services (the "Department") intended to revoke her license to operate a family foster home. By letter dated November 29, 2007, Respondent notified the Department of her intent to contest the revocation and requested a formal administrative hearing. On December 26, 2007, the case was forwarded to DOAH for the assignment of an administrative law judge and the conduct of a formal administrative hearing.

The Department's letter stated the following reasons for the revocation of Respondent's foster care license:

1. Failure to disclose all household members. It has come to the attention of the Department of Children and Families and Children's Home Society that you have an un- screened household member living in your home, providing supervision for the foster children that have been entrusted in your care. It is the foster parent's responsibility to inform the Child Placing Agency, Children's Home Society, of any changes in the household composition. This is a violation of your Bilateral Agreement (section entitled Foster Parent Responsibilities to Children's Home Society, subsection d and e) which you signed on

   July 11, 2007. This is also a violation of F.A.C. 65C-13.010(4)(g).

   
   

2. Failure to properly screen household members. Household members and substitute care parents are required to be background screened to ensure safety and stability of the children to be placed in their home.

   Your paramour, the household member in question, has not been properly background screened as mandated in F.A.C. 65C- 13.009(6)(b), (c) and (d).

   
   

3. The household member residing in your home appears to be a convicted felon. He was sentenced in a case involving the use/possession and/or sale/delivery of heroin in 2004. He is currently on probation and has given your address as his address of record with his probation office.

At the hearing, the Department presented the testimony of Robert Ellis, a probation officer for the Department of Corrections; John Hubbard, a Department attorney who prosecutes child abuse and negligence cases; Arlene Clark, a case manager for the Children's Home Society; and Sarah Yaccarino, a licensing specialist for the Department. The Department's Exhibits 1 through 9 were admitted into evidence. Respondent presented the testimony of Marie Nistri, a program administrator for the Department; Miguel Diaz, a former supervisor in the Department's Brevard County licensing unit; and Laurie Light, guardian ad litem for the foster child M.G. Respondent offered no exhibits.

The Transcript of the hearing was filed at DOAH on February 25, 2008. The Department filed its proposed recommended order on February 27, 2008. Respondent filed her proposed recommended order on March 4, 2008. Both proposed

recommended orders have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency responsible for licensing and monitoring foster care parents. One of its duties is to monitor foster homes and supervise the background screenings of household members when necessary.

2. Respondent has operated a family foster home for several years. Her most recent family foster home license was issued on or about September 18, 2007.

3. M.G., born on June 13, 2003, was a foster child in Respondent's home for at least six months prior to an Order Changing Placement, dated January 30, 2008, issued by Circuit Court Judge John Griesbaum of the Eighteenth Judicial Circuit in and for Brevard County, that removed the child from Respondent's home and placed her in the temporary custody of the Department pending placement in a new foster home.

4. Judge Griesbaum's eight-page order concluded that Respondent had intentionally withheld information from the Department and the Children's Home Society regarding Jose Diego Fernandez, who lived at Respondent's home from April 2007 through October 2007.

5. On September 13, 2004, Mr. Fernandez entered a plea of guilty to the possession and sale of heroin, in violation of

   Sections 893.03 and 893.13, Florida Statutes (2004).2 Possession of a controlled substance is a third degree felony. The sale of heroin is a second degree felony. The court withheld adjudication and placed Mr. Fernandez on probation for a period of five years.

6. In 2006, Mr. Fernandez was arrested for possession of heroin with intent to sell and the possession of drug paraphernalia, in violation of his probation terms.

   Mr. Fernandez entered a plea of guilty to the charges on January 3, 2008.3

7. Robert Ellis is a probation officer who took charge of Mr. Fernandez' probation in August 2007. Mr. Ellis was familiar with the records regarding Mr. Fernandez' probation dating from 2004. Mr. Ellis testified that on or about April 23, 2007,

   Mr. Fernandez provided a change of address to the probation office. The new address given by Mr. Fernandez was 1495 Malibu Circle NE, Unit 111, Palm Bay, Florida. This is the address from which Respondent operates her licensed family foster home.

8. Mr. Ellis testified that he had visited Mr. Fernandez at Respondent's house on several occasions, though never inside the house. Mr. Fernandez would meet Mr. Ellis in a screened patio area in front of the house.

9. Mr. Ellis saw the inside of the house only once, when he knocked to inquire whether Mr. Fernandez was at home.

   Respondent answered the door and told Mr. Ellis that

   
   

   Mr. Fernandez would be back later in the day. Respondent affirmed to Mr. Ellis that Mr. Fernandez was still living there.

10. Mr. Ellis testified that Mr. Fernandez moved out of Respondent's house and into a motel in October 2007.

11. Arlene Clark is a case manager for the Children's Home Society who monitored Respondent's home from late 2005 until November 2007. Respondent had introduced Mr. Fernandez to

    Ms. Clark as a friend of the family, and Ms. Clark saw him around the house on several occasions. On November 7, 2007, Respondent admitted to Ms. Clark that she had lied when she said that Mr. Fernandez was not living in Respondent's home.

    Respondent told Ms. Clark that she was just trying to help a friend, and that there was nothing wrong with her actions because the children were not placed in any danger.

12. The Children's Home Society is a "child-placing agency" as that term is defined in Subsection 409.175(2)(d), Florida Statutes. On July 11, 2007, Respondent entered into a "Bilateral Service Agreement" with the Children's Home Society, for the following stated purpose:

    The purpose of this Agreement is to identify the expectations for both foster parents and the Children's Home Society on behalf of the children and families that are served in the foster care program. This agreement reflects standards of care that are current requirements in Florida Administrative Code,

    which are based on statutory authority found in section 409.175, Florida Statutes. The premise of this agreement is that the Children's Home Society and foster parents must work as partners to assure safety, to provide for the physical and mental well being and to obtain permanency for each child.

    
    

13. Under the heading "Foster Parent Responsibilities to Children's Home Society," the Bilateral Service Agreement provides, inter alia, that the foster parent is required:

    1. To notify Children's Home Society immediately of a potential change in address, living arrangements, marital status, family composition (who is in the home), employment, significant health changes or any other condition that may affect the child's well-being.

       
       

    2. To notify Children's Home Society promptly of all contacts the family or any member of the home has with police or any law enforcement agencies.

       
       

14. Respondent did not notify the Children's Home Society that Mr. Fernandez had moved into her home. In fact,

    Ms. Clark's testimony established that Respondent affirmatively concealed the fact that Mr. Fernandez was living in the foster home.4

    CONCLUSIONS OF LAW

    
    

15. 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 (2007).

16. The Department is the agency charged with the responsibility of licensing foster family homes in the State of Florida. Section 409.175, Florida Statutes (2007), 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:

    
    

    * * *

    
    

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

    
    

17. Florida Administrative Code Rule 65C-13.009, as written at the times pertinent to this proceeding, was titled "Parent Preparation and Mutual Selection" and provided in relevant part:

    1. Requirements for Department of Children and Family Services Staff.

       
       

       1. The certified [Group Preparation and Selection] leader, staff and parents, must:

          
          

          * * *

          
          

          1. Request a criminal records check for all persons age 18 and older residing in the prospective home, using the following procedures:

             
             

             1. Have each adult sign a release of information and consent to law enforcement and abuse registry record check.

             2. Complete a one-time employment history check. This check shall be over a two-year period of time preceding the family's application to provide care and excluding periods of unemployment.

                
                

             3. Complete request for criminal history record check.

                
                

             4. Submit request to the Florida Department of Law Enforcement.

                
                

          2. Request Abuse Registry clearance for all persons age 18 and older residing in the prospective home. The following procedures should be used to procure an Abuse Registry clearance:

             
             

             1. Provide the following information on each adult residing in the home: name, race, sex, date of birth, social security number, name of any previous spouse, and names of all children.

                
                

             2. Submit request for Abuse Registry clearances to the district background screening unit for processing.

          
          

          * * *

          
          

       2. Screening. According to Section 409.175, F.S., screening means the act of assessing the background of personnel and includes, but is not limited to, employment history check, check of references, local criminal records check through local law enforcement agencies, fingerprinting, statewide criminal records check through the Department of Law Enforcement, federal criminal records through the Federal Bureau of Investigation and abuse registry clearance. The implementation of the screening policies and procedures and the determination of good moral character is the responsibility of the district screening coordinator. The district screening coordinator works closely with the district

          licensing counselor to ensure compliance with the statute.

          
          

       3. Local Criminal Records Checks. The local criminal records check is completed yearly through the sheriff or police department located in the community in which the applicant resides. Unless the applicant has lived in the current jurisdiction at least six months, the screening is also conducted for the applicant's previous residence. The licensing program is responsible for coordinating the local criminal records clearance through the district screening coordinator.

          
          

       4. State and Federal Checks. The state criminal records checks are completed every five years and the federal criminal records check, fingerprints, are only done one time at the initial licensing. General information about this screening is as follows:

    
    

    1. Fingerprints are taken by official law enforcement personnel, Department of Children and Family Services personnel or local licensing employees trained for the purpose.

       
       

    2. The cost for processing fingerprint cards for families interested in providing family foster care, family emergency shelter care or family group care is assumed by the department.

       
       

    3. Fingerprint cards are submitted directly to the department for handling.

       
       

    4. The disposition of the state and federal criminal records check is the responsibility of the district screening coordinator. The coordination procedures of the disposition results may vary from district to district. Licensing staff must work closely with their screening coordinators to ensure the disposition information is received in a

    timely manner in order to take action on the licensing application.

    
    

18. Florida Administrative Code Rule 65C-13.010, as written at the time pertinent to this proceeding, was titled "Substitute Care Parents' Role as a Team Member" and provided in relevant part:

    (4) Responsibilities of the Substitute Care Parents to the Department.

    
    

    * * *

    
    

    (g) The substitute care parents must notify the department regarding changes which affect the life and circumstances of the shelter or foster family.

    
    

19. The quoted rules plainly require background screening of all adults residing in a prospective foster home, and further require that foster parents notify the Department of changes in the household that "affect the life and circumstances" of the foster family. The presence in the household of a convicted felon is certinaly a change that affected the circumstances of the foster family. Respondent had an obligation, under the rules, as well as the Bilateral Service Agreement quoted in Findings of Fact 12 and 13 above, to notify the Department of Mr. Fernandez' presence as a resident in her home, so that a proper crimnial and abuse registry screening could be performed.

20. 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).

21. The Department provided competent substantial evidence to establish that Mr. Fernandez resided in Respondent's home from April to October 2007, and that Respondent admitted that fact to Mr. Fernandez' parole officer while concealing it from the Department and the Children's Home Society.

22. In response, Respondent provided an unsupported theory that the Department and the Children's Home Society were engaged in a "conspiracy" to reunite M.G. with an older sibling, and this conspiracy required that M.G. be removed from Respondent's home and that Respondent lose her foster care license. Respondent's other contention, that Mr. Fernandez posed no

    threat to the children in Respondent's home, was at best secondary to the fact that Respondent was dishonest in her dealings with the Department.

23. The Department has 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 revoking Respondent's foster care license.

DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 4th day of April, 2008.

ENDNOTES

1/ The referenced rules have been repealed, effective April 6, 2008. See the December 1, 2006, issue of the Florida Administrative Weekly (vol. 32, no. 48, pp. 5672-5673) for the notice of repeal. As of the writing of this order, the date of repeal has been published at www.flrules.org but has not appeared in the Florida Administrative Weekly.

2/ All references to Florida Statutes are to Florida Statutes (2007), unless otherwise indicated.

3/ Current Department of Corrections Offender Network information indicates that Mr. Fernandez received a two-year sentence on February 12, 2008, entered the Taylor Correctional Institution Annex on February 20, 2008, and is scheduled to remain incarcerated until December 24, 2009. At the time of the hearing, Mr. Fernandez was still free and subject to monitoring by his probation officer.

4/ Respondent chose not to testify at the final hearing.

COPIES FURNISHED:

T. Shane DeBoard, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1114 Orlando, Florida 32801

Mercedes Gonzalez

1495 Malibu Circle Northeast, Unit 11 Palm Bay, Florida 32905

Gregory Venz, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B

Tallahassee, Florida 32399-0700

John Copelan, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B

Tallahassee, Florida 32399-0700

Robert Butterworth, Secretary Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B

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: 07-005778

Orders for Case No: 07-005778