STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD AND MARJORIE GROVER, )

)

Petitioners, )

)

vs. ) CASE NO. 91-5842

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

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. The appearances were as follows:

APPEARANCES

For Petitioner: Ronald and Marjorie Grover

4713 Radio Road

Milton, Florida 32583

For Respondent: Rodney M. Johnson, Esquire

HRS District 1 Legal Office

P.O. Box 8420

Pensacola, Florida 32505-0420 STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Petitioners application for relicensure as a Child Youth and Families Foster Home for dependent children should be granted. The specific question to be resolved concerns whether the Petitioners mistreated children in their care as foster parents and as licensees of a foster home within the meaning of Rule 10M- 6.05, Florida Administrative Code.

PRELIMINARY STATEMENT

This cause arose upon the denial of the Petitioners' application for relicensure as a Children Youth and Families foster home for dependent children. The denial was entered by the Department of Health and Rehabilitative Services (HRS; Department) on August 2, 1991.

The Petitioners made a timely request for administrative hearing pursuant to Chapter 120.57, Florida Statutes and after a number of agreed upon continuances the cause came on for hearing as noticed. The basis for the Respondent's denial of the application for license is based on events leading to removal of the M. children from the G. foster home on April 18, 1990. The M. children had been placed in the Petitioners' foster home on April 14, 1989 by

the Department. The removal occurred because the M. children related several incidents concerning which they felt they had been mistreated by M.G., one of the Petitioners. Because of these reports the children were removed from the Petitioners' foster home on April 18, 1990 and no children have been placed in that home since that time. The Petitioners were initially licensed as a foster home for dependent children by the Department on February 20, 1989. They were relicensed on February 20, 1990 for a twelve month licensure. The Petitioners filed an application for annual renewal of their license after having been notified by the Respondent by certified mail dated January 29, 1991 of the decision to revoke licensure which was due to expire on February 20, 1991. The issue concerning that licensure was the subject of an administrative proceeding filed with the Division of Administrative Hearings. On the Department's own motion to relinquish jurisdiction, jurisdiction of that matter was relinquished back to the Department by Hearing Officer Benton by order of February 1, 1991. It is alleged by the Department that the Petitioners continued refusal to agree to voluntary closure of their foster home led ultimately to the subject denial of the Petitioners' application for relicensure as a Children Youth and Families foster home on August 2, 1991.

The cause came on for hearing as noticed. At the hearing the Petitioners presented their own testimony and the Respondent presented the testimony of the three children involved in the incident giving rise to this proceeding as well as the testimony of Donna Mimms, a human services program specialist with the Department in its Family and Youth Program Office. The Petitioners presented five exhibits which were admitted into evidence and Petitioners exhibit six, which is admitted pursuant to Section 120.58(2), Florida Statutes to the extent that it is corroborative or explanatory hearsay in corroboration of the Petitioners own testimony.

The hearing was concluded and the parties requested and were granted an extended briefing schedule for the submission of proposed findings of fact and conclusions of law. No transcript was apparently ordered by the parties, as none has been filed. The proposed findings of fact were submitted by the Department and those proposed findings of fact have been addressed in this Recommended Order and in the appendix attached hereto and incorporated by reference herein. The Petitioners did not submit proposed findings of fact but rather a handwritten document which in reality constitutes final argument in letter form and as such there are no separately stated proposed findings of fact which can be specifically ruled upon, although the subject matter of that posthearing submittal is addressed and determined in this Recommended Order.

FINDINGS OF FACT

1. The Petitioners R.G. and M.G. were licensed as foster parents and their home as a Children Youth and Families foster home for dependent children at all times pertinent hereto.

   
   

2. The Respondent is an agency of the state of Florida charged with licensure of foster parents and foster homes and with regulating and enforcing the standards of care of children placed in such foster homes as dependent children.

   
   

3. This dispute apparently arose on or about April 18, 1990 when M.G., the foster mother, brought the M. children to the Department of Health and Rehabilitative Services office on that date to talk with a foster care counselor about problems experienced with the M. children in her home. Apparently the visit to the Department's office arose because M.G. had discovered that one of

   the children had allegedly stolen one or more articles from a local store in the community, or believed that she had, and was seeking the advise and council of Department's representative concerning the manner in which to address that perceived problem. During the course of that encounter with the Department's representative the M. children or some of them related incidents occurring in the home in the past while they were placed in the custody of the Petitioners which they felt involved or constituted mistreatment by M.G. Upon learning of these reports Department personnel removed the children from the G. home on April 18, 1990. No other children have been placed by the Respondent in the G. foster home since that time.

   
   

4. Michelle M. testified that Petitioner M.G. called Marie M. a bitch, a whore and a slut on one occasion and gave Marie M. "the bird" (an obscene gesture). Michelle M. testified that M.G. called Marie M. a slut and stated that "she's just going to grow up to be a whore." Apparently Marie M. and Michelle M. had reported that M.G. called Marie M. a whore when Marie M. told

   M.G. about borrowing fifty cents from a boy at school. At the hearing, however, Marie M. testified that she borrowed fifty cents from a boy at school and that when M.G. learned of it she said "it would make her look like a whore." Mandy

   M. testified that M.G. thought that Mandy had called her "a faggot" and that, instead, she told her that she had called her sister that name but that M.G. did not believe her and sent her to her room and shoved her into the room whereupon she fell and hit herself against the bed or bedpost by accident. Michelle M. testified that on a church hayride a boy threw hay and hit M.G. in the face whereupon, thinking Michelle M. had done it, that M.G. hit Michelle on the leg with a flashlight. Mandy M. testified that M.G. hit Michelle on the leg with a flashlight, but her testimony revealed she knew nothing of that incident and her description of it was related to her by one of her sisters. Additionally, Marie

   M. testified that she saw M.G. pick up an infant by one arm from a crib and scold it for crying as she was picking the infant up to hold the infant in her arms. Michelle and Marie M. testified that M.G. held Marie M.'s mouth open and shoved red hot sauce into her mouth with a spoon as punishment for some perceived infraction. Marie M. testified that M.G. threw hot tea or hot water on the face of Marie M. while the child was asleep on a couch.

   
   

5. M.G. categorically denies all the allegations made by the girls, the foster children in question referenced above. She denies ever making obscene gestures, ("the bird"), at any of the girls and denies calling them names such as bitch, slut or whore. She concedes that she may have admonished them or one of them about not "acting like a slut or a whore," etc. She also denies ever having administered hot sauce to any of the children. She said that on one occasion she gave Mandy some mustard on a teaspoon when the child inquired what it tasted like because she had never tasted mustard. She gave her a small amount of it just to show her how it tasted. She denies ever throwing hot tea or hot water on the face of any of the children and denies causing any of the children injury, specifically concerning the bedroom incident when the child apparently bruised her back falling against the bed. M.G. did use confinement for brief periods in a child's room as a form of discipline for inappropriate conduct in the home. She also denies hitting Michelle M. on the leg with a flashlight during the church hayride. In fact due to her position in the haywagon at the other end of the wagon from the child in question, it would have been impossible for her to reach over and hit her with a flashlight and that incident did not occur.

   
   

6. M.G.'s testimony concerning the children's conduct and family life in the home with the children is to the effect that the older two girls, particularly the oldest, Michelle M., had a tendency to lie in order to "get

   their way"; that the girls were unruly and that they, particularly Michelle, used their relationship with HRS to try to intimidate the foster parents, particularly M.G. They had threatened to report M.G. for improper behavior towards the children in the home. The children resented the foster parents authority. Her testimony describes in detail, as do the exhibits submitted by the Petitioners, consisting of the monthly reports M.G. made to HRS, the progress of the girls and conditions generally in the foster home. This testimony and evidence shows that the Petitioners generally provided the children a good, wholesome home environment, with extensive involvement in school and church activities and with ample wholesome recreation activities at the home site on a lake. During the tenure of the girls in the Petitioners' home their scholastic progress improved markedly such that they were all earning "A and B" grades in school and otherwise were progressing well in school. M.G.'s testimony established that the Petitioners were providing a wholesome home environment for the children and were generally conscientious about caring for the children's needs, including medical needs, and with maintaining contact with and reporting to HRS concerning the children's living conditions and their progress in the home and in the school and church environment.

   
   

7. The testimony of M.G. to the general effect that the older girls, particularly the oldest child, had a tendency to threaten reporting the parents or M.G. to HRS concerning their conduct as foster parents and their willingness to lie in an attempt to get their way or to intimidate the foster parents is corroborated by the letter in evidence as corroborative hearsay authored by Linda Kennedy. She is an acquaintance of the Petitioners associated with the Petitioners through the foster parent program. That letter indicates that when the girls were being taken to HRS to make statements concerning the incidents in question that they were reported to have said that they wanted to "get back at her" meaning M.G., the Petitioner and that Marie was heard to instruct Mandy not to talk to a lawyer because she "now liked M.G." and that Michelle had commented to the effect that she "wanted to really get her," meaning M.G. This information is taken from a hearsay letter in evidence pursuant to the above cited provision of Section 120.58, Florida Statutes but it corroborates the testimony to the same general effect of M.G. and corroborates testimony of Mandy

   1. who, after describing in her testimony some of the alleged parental abuse by M.G., testified that her sisters had asked her to say things to hurt M.G.

      
      

8. Because of these revelations contained in the testimony of Mandy M. and the testimony of M.G., as corroborated by the letter in evidence authored by Linda Kennedy, it is deemed that the testimony of the three children can be accorded scant credibility and resultant weight. Accordingly the testimony of

   M.G. and Petitioner R.G. is accepted over that of the testimony of the three children testifying for the Respondent and it is found that the incidents described by the three children did not occur or did not occur in the way described by the three children such that they can not be deemed to have constituted abusive, disciplinary parenting practices and prohibited disciplinary practices.

   
   

9. The testimony of Donna M. establishes that she has overseen the operation and management of foster homes in her capacity with the Department for many years. After the M. children were removed from M.G. and her husband and their foster home she had a number of telephone conversations with M.G. M.G. appeared to her, based upon her observance and her experience, to seem "fairly incoherent" during those telephone conversations on occasion. Consequently she recommended to M.G. that, in the course of the controversy concerning whether or not the foster home should be relicensed, that M.G. obtain a psychological evaluation. M.G. apparently scheduled that evaluation, appeared at the

   psychologist's office but, as shown by Petitioner's exhibit 5, the psychologist's report, apparently did not genuinely feel that she needed to get an evaluation. She rather merely consulted the psychologist concerning his advice to her about her dealings with HRS. He declined to render such advice and no psychological evaluation was ever made. In view of Ms. Mimms testimony, which is accepted, and in view of the comments made in the letter of Ms.

   Kennedy, and from the hearing officer's observance of the demeanor of M.G. and consideration of her testimony, it is deemed appropriate that a psychological evaluation of M.G. be obtained as a condition upon relicensure.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), and Section 409.175(8)(a)(b)1.2., Florida Statutes.

    
    

11. Pursuant to Section 409.175(4)(a)1., Florida Statutes, the Department has authority to promulgate rules, licensing standards and to initiate enforcement actions concerning licensure and regulation of family foster homes. The rules promulgated pursuant to the statutory authority which are applicable during the time period at issue in this proceeding are contained in Chapter 10M- 6, Florida Administrative Code, effective July 27, 1983.

    
    

12. Foster care disciplinary policies developed by the Department of Health and Rehabilitative Services are as follows as pertinent hereto:

    
    

    "10M-6.05(4) Foster home requirements:

    (j) Licensing and relicensing procedures devel- oped by the Department shall include the presen- tation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate non-abusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through which the foster

    child develops the self-control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behavior. The purpose of discipline is educational and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal con- trols. Foster parents are expected to define

    rules which establish limits and types of accept- able behavior. These rules must be clearly explained to each child and applied equally to all children. Prohibited disciplinary practices include group punishments for misbehavior of individuals; withholding of meals, mail or

    family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading pun- ishment which subjects the child to ridicule; being placed in a locked room; and delegation of authority for punishment to other children or persons not known to the child. The use of

    isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such

    periods of isolation shall be observed and super- vised by the foster parent to ensure the safety of the child."

    
    

13. The Petitioners, particularly M.G., are charged with engaging in prohibited disciplinary practices which are neither educational nor rational for dealing with foster children in a parenting or disciplinary context. The activities M.G. was reputed to have engaged in would have constituted such prohibited disciplinary practices had they been proven. In fact, however, the testimony of the children to the extent that they described such practices being perpetrated by M.G. has been found to be of insufficient credibility and weight to support findings of fact to the effect that that alleged prohibited disciplinary practices and conduct, described in the above findings of fact actually occurred. The testimony of R.G. and M.G. is accepted over that of the three children testifying to the extent that it is concluded, based upon weighing the candor and credibility of R.G. and M.G. as witnesses over that of the three M. children, that the alleged abusive practices disciplinary procedures did not occur as described. Consequently no justification has been shown for the denial of the foster home license at issue.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore recommended that a Final Order be entered by the Department of Health and Rehabilitative Services granting the application for relicensure of the Petitioners as a Children Youth and Families foster home for dependent children, conditioned on the obtaining of a satisfactory psychological evaluation of M.G.

RECOMMENDED this 3rd day of August, 1992, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5842

Respondent's Proposed Findings of Fact

(The Petitioners submitted no proposed findings of fact which can be independently and specifically ruled upon).

1. - I. Rejected as not supported by the greater weight and credibility of the evidence.

COPIES FURNISHED:

Rodney M. Johnson, Esquire HRS District 1 Legal Office

P.O. Box 8420

Pensacola, FL 32505-0420

Ronald and Marjorie Grover 4713 Radio Road

Milton, FL 32583

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO 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: 91-005842

Orders for Case No: 91-005842