STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1662

)

JANET OSTRANDER and )

RUSSELL OSTRANDER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for Administrative Hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on December 16, 1982, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Anthony N. DeLuccia, Esquire

District Legal Counsel Post Office Box 06085

Fort Myers, Florida 33906

For Respondent: Russell Ostrander, pro se

Route 2, Box 382 Ruden Road

North Fort Myers, Florida 33903

This cause was initiated on a "letter complaint" by the Department of Health and Rehabilitative Services against the above-named Respondents, wherein the Department notified them of its intent to revoke their license to operate a foster home, located at Route 2, Box 382, Ruden Road, North Fort Myers, Florida 33903. In essence, it is alleged that pursuant to a complaint by the natural mother of foster child, T.P., a child abuse investigation was initiated by the Department on February 13, 1982, which revealed that Mr. Ostrander had allegedly spanked the said foster child, a resident in his foster home, on two occasions on February 10, 1982, causing bruises to her buttocks and thighs. The alleged reason for the spanking was due to the child wetting and soiling her clothing and bedding on two occasions that day. It is alleged by the Department that child abuse occurred, especially inasmuch as the emotionally disturbed child involved suffered from enuresis, or uncontrolled urination, and ecopresis, which is uncontrolled defecation. It is alleged that these conditions were known to the Respondents prior to the child's placement in their home. It is thus alleged that the Respondents failed to comply with minimum acceptable standards as foster parents pursuant to Chapter 10C-10.29(3), Florida Administrative Code. The Petitioner presented three exhibits, all of which were admitted into evidence. The first two, consisting of photographs of the injuries (bruises) on the child's buttocks and thighs, and the third exhibit being an excerpt from the

Petitioner's "foster care manual" (page 275). Additionally, the Petitioner presented four witnesses, consisting of a social and rehabilitation counselor, a child psychologist, a "foster care supervisor", and a "district intake counselor." The Respondents presented the testimony of the foster father, Respondent Russell Ostrander, and Eric King, his son. Subsequent to the hearing the parties elected not to obtain a transcript and no proposed findings of fact and conclusions of law were filed.

FINDINGS OF FACT

1. The Respondents operated a "therapeutic foster home" in Lee County, North Fort Myers, Florida. A therapeutic foster care home such as this is licensed to accept and care for emotionally disturbed children such as the 9- year-old girl, T.P., involved in this case and, as such, has a mental health technician from the Department available for consultation should such assistance be needed.

   
   

2. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with administration of the foster care program mandated by Chapter 409, Florida Statutes, and the above-cited chapter of the Florida Administrative Code.

   
   

3. The child involved in this dispute, "T.P.", is a 9-year-old girl who has been diagnosed as emotionally disturbed. The Respondents were aware that she was an emotionally disturbed child when she was placed in their home with one other foster child and were also aware that theirs was a licensed therapeutic foster home with a mental health technician available for consultation. They failed to make use of the services of that technician in dealing with the child's problem involving enuresis and ecopresis.

   
   

4. This child's medical problem, involving incontinence of bowel and bladder, is related to the child's emotional disturbance. Because of the nature of this problem and its psychological ramifications, it is even more critical than with ordinary children that slapping or hitting as a punishment for bed- wetting or soiling of clothes or bedding should be avoided. If the child is so punished for incontinence, then the child's guilt feelings or feelings of inadequacy for having "accidentally" soiled bedding or clothes is greatly aggravated.

   
   

5. On February 10, 1982, the Respondent, Russell Ostrander, administered corporal punishment to the child T.P. on two occasions, leaving multiple black and blue marks or bruises on the buttocks and thighs of this child "because she was messing in her britches." The child, either later that day or one or two days thereafter, visited with her natural mother who observed the bruises and reported the matter to Mrs. Parker, the Petitioner's first witness, who is a "district intake counselor." Mrs. Parker, and/or the other HRS personnel testifying for the Petitioner, felt that an instance of child abuse had occurred and removed the child from the foster home.

   
   

6. The despondent admitted spanking the child on several occasions, but did not believe he could have caused the bruises shown in Exhibits 1 and 2. The Respondents admitted however that the child was spanked as punishment for "messing in her britches."

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1980).

   
   

8. Section 409.175, Florida Statutes (1981), provides in pertinent part as follows:

   
   

   1. The department may, by rule, set minimum standards for the care of dependent children away from their own homes, and for dependent children in the care of child-placing agencies, and shall prescribe, amend, or alter such

      rules as may be necessary for the care and supervision of such children.

   2. No person other than a relative, a person who is considering the adoption of a child in the manner provided for by law. . .and no institution, society, or association, may receive a dependent child for boarding or custody unless such person. . .shall first

      have procured a license from the department empowering or authorizing such person. . .to care for, receive, or board a child or children.

      (4) Any such license may be revoked by order of the department for violation of the regulations of the department governing the activities of the licensee.

      
      

9. Rule 10C-10.29, Florida Administrative Code, provides pertinently as follows:

   
   

   FOSTER PARENT STANDARDS.

   1. General

      (a) The foster family is the basic resource which makes it possible for a child who cannot remain in the home of his own parents or close relatives to have the experience of family living; to have opportunities for emotional development and socialization in accordance with the prevailing culture of our society; and, where the child's previous experiences have been unsatisfactory, to have a corrective family life experience.

      (3) Personal Qualities for Foster Parents.

      a. Foster parents should:

      1. Enjoy being parents and be experienced with children.

      2. Accept and understand the individual needs of foster children and how these needs may differ from those of their own children.

      3. Have the ability to accept the child's relationship with his parents and agency.

      4. Accept the agency's responsibility for determining the outcome of foster care and cooperation in supporting the plan.

      5. Commit themselves to providing continuity of care and to working with the agency in the child's behalf.

      6. Accept and abide by the placement agreement and agency's policies. . .

      
      

10. The preponderant evidence in the record establishes beyond question that on February 10, 1982, the Respondent, Russell Ostrander, spanked the child, T.P., severely on two occasions and for the reason of punishment for the child's soiling of her clothes and bedding due to incontinence of bowel and bladder. Such punishment was established to be inordinately abusive in view of the Respondents' knowledge of the child's emotionally disturbed condition before they accepted the child in their home as well as their knowledge that their foster home was licensed and intended to be a "therapeutic foster home." Thus, the Respondents were on notice that they should be especially sensitive and mindful of the above standard- "accept and understand the individual needs of foster children and how these needs may differ from those of their own children." Thus, knowing the child had an emotional problem related to incontinence before the child was placed in their home, the Respondents engaged in excessive punishment of the child for, quite literally, merely exhibiting symptoms of her known condition, rather than for any justifiable purpose. The Petitioner had a "mental health technician" available to consult with the Respondents to aid them in dealing with the child's emotional disturbance and that they failed to avail themselves of this service and assistance, with the result that the child was made to suffer for the Respondents' failure to understand her individual needs. The Respondents' dereliction is rendered especially critical in view of the unrefuted evidence establishing that spanking as a punishment for soiling bed clothes or clothing because of this medical emotional problem is particularly harmful to the psyche of such a disturbed child. Had the Respondents availed themselves of the mental health assistance available in operating a foster home, they would have been more sensitive to this. In view of the evaluation process required prior to their being licensed as a therapeutic foster home, they should have been aware of it at any rate. Thus it must be concluded that the Respondents have failed to accept and understand the individual needs of the foster child for purposes of the above rule, including how those needs might differ from those of their own children; nor have they afforded an appropriate opportunity for emotional development and socialization; nor provided a "corrective family experience" for purposes of Rule 10C-10.29(1)(a), Florida Administrative Code.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, the evidence in the record, it is therefore

RECOMMENDED:

That the license of Janet and Russell Ostrander to operate a foster home be revoked.

DONE and ENTERED this 12th day of May, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1983.

COPIES FURNISHED:

Anthony N. DeLuccia, Esquire District Legal Counsel

Post Office Box 06085

Fort Myers, Florida 33906

Russell and Janet Ostrander Rt. 2, Box 382

Ruden Road

North Fort Myers, Florida 33903

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32301

Docket for Case No: 82-001662

Orders for Case No: 82-001662