STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1338

)

MELDA HARRIS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, in Fort Lauderdale, Florida, on May 19, 1992.

APPEARANCES

For Petitioner: Jacqueline S. Banke, Esquire

Department of Health and Rehabilitative Services

201 West Broward Boulevard Room 513

Fort Lauderdale, Florida 33301-1885

For Respondent: Rev. Melda Harris, pro se

681 N.W. 37th Avenue Lauderhill, Florida 23311

STATEMENT OF THE ISSUES

The issue is whether the license of Rev. Harris to operate a foster home should be terminated by the Department for the reasons stated in the Department's letter of October 7, 1988.

PRELIMINARY STATEMENT

The Department informed Rev. Melda Harris on October 7, 1988, that the Department would no longer place children with her as a foster parent. The operative portion of the letter stated:

This is to inform you that your foster home file has been closed. This action is being taken because of an agency decision no longer to utilize your foster home. This decision was based on your interpretation of the role of a foster parent versus the agency's. The manual states a child must be allowed an opportunity for growth, development, and

religious choice and to have presented to him a positive image of himself and his family.

Children must be allowed to play with and be a part of the general community.

Although Rev. Harris requested a hearing on October 21, 1988, no hearing was ever scheduled. Later Rev. Harris contacted the Department to again request the hearing so that she could act as a foster parent for other children. The Department recently forwarded the matter to the Division of Administrative Hearings for a belated hearing on its October 7, 1988, termination action. At the hearing, the Department offered five exhibits (then denominated Respondent's exhibits, although the Department is actually the moving party, and therefore, the Petitioner). Exhibit 1 is a memorandum to Margaret Andrews from Deborah Owens dated August 3, 1988; exhibit 2 is a memorandum to Gregory Gilmartin from Sharon Woodroff dated August 11, 1988; exhibit 3 is a letter dated September 12, 1988, to Rev. Harris from Margaret Andrews and Susan Gregory; exhibit 4 is a completed form 5026 for the closing of a foster home for dependent children dated October 7, 1988; exhibit 5 is a letter to the agency clerk from Margaret Andrews and Di'Ane Rogin dated February 12, 1992, to which Rev. Harris' request for hearing is attached; and exhibit 6 is a letter addressed to foster parents and HRS from a Ms. Johnson-Gilcort dated September 13, 1988. The Department presented the testimony of Margaret Andrews, Sharon Woodroff and Deborah Owens. Rev. Harris presented the testimony of Ann E. Vaughn, Eugene Chance and testified on her own behalf.

At the close of the evidence, the Hearing Officer requested that the Department obtain the records of a mental health therapist for one of the foster children in Rev. Harris' home, Clive Davidson, from the therapist, Art Jones,

1. The Department attempted to obtain the records but was unable to do so because Clive Davidson had been adopted and the Department was not able to give consent for the release of those records. Instead, the Department offered psychological reports which had been submitted to the Department by Mr. Howard Marcus, Harvey Parker, Ph.D., and Charles Lester, M.D. These late-filed exhibits have been admitted as composite exhibit 7 and considered in the determination of this case.

   
   

   The Department filed its proposed recommended order on June 24, 1992.

   
   

   FINDINGS OF FACT

   
   

   1. The Reverend Melda Harris provided foster care to children in the custody of the Department of Health and Rehabilitative Services (the Department). She became the foster parent of four siblings, Clive Davidson (born 9/30/78), Iman Davidson (born 1/1/80), Joy Davidson (born 7/24/81), and Lucky Davidson (born 12/2/83). The older children had been placed with Rev. Harris in 1985, the younger two were placed with Rev. Harris in 1987. The Davidson children had been abused by their natural parents and had been removed from their care; the extent and nature of the abuse is not clear from the testimony. A letter from Howard Marcus and Dr. Harvey Parker to the Department dated June 21, 1988, indicates that the natural parents were physically violent, the parents were frequently separated, and that ultimately the natural parents disappeared.

      
      

   2. The oldest sibling, Clive, was approximately 9 years old. He was being seen by a therapist, Art Jones, M.S.W., who was of the opinion that Clive should be separated from his siblings because of aggressiveness (physical violence), but especially because he had attempted on at least two separate occasions to

      simulate intercourse with his seven year old sister, Joy, while clothed. Therapy at the Henderson Mental Health Center was terminated because the therapist was of the opinion that Clive's sexual problems and propensity to act out further with his sister could not be dealt with effectively while he remained in the same home as his sister. According to Dr. Parker and Mr.

      Marcus, Clive engaged another little girl in simulated intercourse with him. On that occasion, both were unclothed. Joy Davidson was in treatment at the Broward County Sexual Assault Treatment Center due to her experiences with Clive.

      
      

   3. Rev. Melda Harris is a deeply religious woman who brought all the children up in a religious atmosphere. The children were actively involved in Massonic organizations where they interacted with other children. Rev. Harris selected the movies the children would watch, and generally they would watch a religious television station in the Broward County area (Channel 45), although they were not exclusively limited to that form of television.

      
      

   4. The children were also seen regularly by Ann E. Vaughn, who was their guardian ad litem for a period of four years before they were placed with Rev. Harris. Ms. Vaughn continued in that role after their placement in the Harris foster home. Ms. Vaughn would visit the home without prior appointments, there is no reason to believe that what Ms. Vaughn saw was not typical of the interaction of Rev. Harris and the children at the foster home. Ms. Vaughn was of the opinion that all the children had love and affection for Rev. Harris and that she did not concentrate her affections only on the youngest child, Lucky. The children generally stayed in the fenced-in yard at the Harris home because drug activity in the neighborhood made it unsafe for them to play in the street and because of the heavy traffic in the street outside the home. Ms. Vaughn was also worried the children's natural father would occasionally slip into the area, and Rev. Harris was concerned about leaving the children outside out the fenced area of the residence due to fear that the father might try to kidnap them.

      
      

   5. The most serious problem which the Department had with Rev. Harris occurred on August 10, 1988, when she came to the HRS office with Clive, and asked to return him to HRS custody. The Department was adamant that if she was not willing to keep Clive, the Department would remove the other children from her home in order to keep the siblings together. The Department staff took offense at Rev. Harris' action. In view of the serious consequences which could arise from further incidents of sexual acting out by Clive against his younger sister, Joy, it was entirely appropriate for Rev. Harris to be concerned about his remaining in the home, especially when the social worker assigned as Clive's therapist had resigned from the case in May of 1988 out of a belief that "Clive's sexual problems and propensity for further acting out in that manner, could not be effectively dealt with so long as he remained in the same home as his sister." (Respondent's late-filed exhibit, page 4, letter of June 21, 1988, from Howard Marcus and Harvey C. Parker, Ph.D., to Deborah Owens.) It is also significant, however, that Rev. Harris' decision to return Clive to HRS is not listed as one of the grounds the agency cited in its October 7, 1988, letter stating the Department's decision to close Rev. Harris' foster home.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over this matter. Sections 120.57(1), Florida Statutes.

   7. The Department's letter of October 7, 1988, states the reason the Department intended to close Rev. Harris' foster home; it is quoted in the preliminary statement. The Department may not raise, at the hearing, other issues as the basis for its decision to terminate the foster home licensure when Rev. Harris was not on notice that the Department would rely on those grounds as bases for termination of her license. While other memoranda may have been generated stating other bases for dissatisfaction, Rev. Harris was entitled to believe that she would be called upon to defend against the allegations found in that letter, which served as an administrative complaint. See Willner v. Department of Professional Regulation, Board of Medicine, 563 So.2d 805 (Fla. 1st DCA 1990), rev. den., 576 So.2d 295 (Fla. 1991); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So.2d 383 (Fla. 3d DCA 1990); Board of Trustees of the Internal Improvement Trust Fund v. Barnett, 533 So.2d 1202, 1206-07 (Fla. 3rd DCA 1988); Davis v. Department of Professional Regulation, 457 So.2d 1074, 1078 (Fla. 1st DCA 1984); Wray v. Department of Professional Regulation, Board of Medical Examiners, 435 So.2d 312, 315 (Fla. 1st DCA 1983).

      
      

   8. At the hearing, the Department appeared to be under the misapprehension that Rev. Harris is an applicant in this case for licensure to operate a foster home. As the Department acknowledged in its exhibit 5, after the Department proposed to close the Harris foster home it sent a letter to Rev. Harris to that effect on October 7, 1988, which informed her that if she wished to contest the decision she must ask for a hearing within 15 days or the action would become final. Rev. Harris did ask for a hearing but "one was never scheduled." In view of the Department's failure to have provided a hearing in 1988, the issue here is whether Rev. Harris' license to operated a foster home should be revoked.

      
      

   9. An agency may not refuse to renew a license as a means of attempting to revoke a license. See, e.g., Dubin v. Department of Business Regulation, 262 So.2d 273 (Fla. 1st DCA 1972), where the First District rejected the attempt of the Department of Business Regulation to refuse to renew a license of a horse trainer for what the Department contended was misconduct while he had been licensed. The Department took the position that the licensee had failed to carry a continuing burden to demonstrate that he possessed the integrity which was a statutory requirement for licensure, and refused renewal of the license when the term of the license expired. The Court required the agency to file an administrative complaint and bear burden of proof on the charge of misconduct. Rev. Harris was not required to "present clear and convincing evidence to support a reasonable belief that she did not violate. . . Section 409.175(4)(a), Florida Statutes." (HRS Proposed Recommended Order, page 12, paragraph 9).

      
      

   10. The Department's letter of October 7, 1988, alleges as the basis for closing the foster home the violation of a manual for foster parents in these terms:

       
       

       The manual states the child must be allowed an opportunity for growth, development and religious choice and to have presented to him a positive image of himself and his family. Children must be allowed to play with and be a part of the general community.

       
       

   11. The manual at issue is not specifically identified in the letter, and was never offered into evidence at hearing. It is by no means clear exactly what it is the manual requires, or how Rev. Harris' actions contravened any

       requirements of the manual. It is not even clear that the manual has been adopted by the Department as a rule, and has the force of law, so that violation of the manual will support a licensure revocation. The testimony of the guardian ad litem, Ms. Vaughn, who regularly had contact with the children both before and while in the care of Rev. Harris, supports the position of Rev.

       Harris that she provided the children with an opportunity for growth, development and religious choice. Precisely how much religious choice children below the age of nine can be reasonably expected to exercise was never explained during the hearing. There was no evidence of any religious instruction or preference which had been followed by the natural parents. The children were active in religious organizations within the community. They were permitted contact with other children. Their activities were somewhat restricted for a number of reasons, including the danger involved in permitting them to play outside the fenced area of the residence due to traffic in the area, the danger of kidnapping by the natural father (whom the Department had found was not capable of caring for them, or they would not have been placed in foster care), and the need to watch Clive closely because of three instances of acting sexually out with other children, including his younger sister.

       
       

   12. Rev. Harris' decision to return Clive to the Department might serve as some proof that she did not provide him with a sufficiently positive image of himself, but her actions are equally consistent with caring for him and his siblings (especially Joy) by attempting to see that the advice of the therapist for Clive, who had determined that it was inappropriate for him to remain in the home given his problems, was carried out. Indeed, it would have been inappropriate for Rev. Harris to ignore the therapist's advice. While HRS might not have agreed with this advice, and may have preferred to keep the children together, the action of Rev. Harris in returning Clive to the Department was based on appropriate professional advice; it does not constitute an adequate basis for revoking her licensure to operate a foster home. Moreover, the Department never pleaded any violation of Section 409.175(4)(a), Florida Statutes, in its October 1988 termination letter.

RECOMMENDATION

It is recommended that a final order be entered by the Secretary of the Department of Health and Rehabilitative Services dismissing the allegations contained in the letter of October 7, 1988, which forms the basis for the Department's notice of intention to close Rev. Harris' foster home (and implicitly to revoke her license to operate a foster home), and that her license be fully reinstated.

RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of July 1992.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1338

Rulings on findings proposed by the Department:

1. The description of the children is adopted in Finding of Fact 1. The description of Ms. Andrews is rejected as unnecessary.

   
   

2. Generally rejected because the question whether the children were allowed to eat is not at issue based on the charging document the Department mailed to Rev. Harris. Based upon the testimony of the Department's witnesses, I do not, believe that the children were not allowed to eat for an entire day, although the children may have said that. Whether the children were allowed to play outside the home and were restricted to viewing a religious television station are discussed in Findings of Fact 3 and 4.

   
   

3. and 4. Rejected as unnecessary and irrelevant to the charges filed.

1. The "additional concerns" are not appropriate because they are not the basis for the charge filed. Moreover, locking the children in their bedrooms was a misguided but understandable precaution given the concern about sexual acting out by Clive. The children were permitted to play outside, in their yard, and they did visit with other children especially at religious functions they attended, and at school. The children were not limited to watching a religious television channel. See, Finding of Fact 3. The allegation that Rev. Harris showed favoritism to Lucky is rejected. See, Finding of Fact 4. Precisely what it means to "speak poorly to the natural parents in front of the children" is not clear (Department proposed finding 5E). It is unreasonable to believe that the family unit could have been strengthened. The relationship with the children's natural parents has been severed by their adoption, and the removal from the custody of the natural parents appears to have been entirely appropriate. Similarly, the allegation that statements made by Rev. Harris "created concern" is difficult to understand, since there is no indication that there is any legal standard to be applied which forbids conduct by foster parents which "creates concern" among Department staff. Obviously Clive had serious problems, over and above his sexual problems, as indicated by the records placed in evidence. Surely Rev. Harris was not required to ignore instances of lying or stealing. It is by no means appropriate to conclude that Rev. Harris breached "a confidentially standard" (whatever that might be) because Ms. Johnson-Gilcort wrote that Clive "rape his sister and was no good." Ms. Johnson-Gilcort did not testify, and is not clear that Ms. Johnson-Gilcort's characterization of Clive in the letter had its source in Rev. Harris.

   
   

2. Adopted in Finding of Fact 5.

   
   

3. Rejected as inconsistent with the charging document, the October 7, 1988, letter. The issues for hearing were not framed in the letter dated September 12, 1988.

   
   

4. Rejected as irrelevant to the issues framed for hearing.

9 and 10. Adopted in the Preliminary Statement.

1. Generally adopted in the Preliminary Statement.

   
   

2. Adopted in the Preliminary Statement, although this is not an "appeal."

   
   

3. The testimony of Rev. Harris is addressed and generally adopted in Finding of Fact 5.

   
   

4. Rejected as argument and irrelevant. The question is not whether Ms. Harris received a letter of August 11, 1988, but whether the Department could prove the allegations made in its letter of October 7, 1988, which it drafted, and which framed the issues for hearing.

   
   

5. Generally adopted in Finding of Fact 4.

16 - 18.Rejected as unnecessary.

COPIES FURNISHED:

Jacqueline S. Banke, Esquire Department of Health and

Rehabilitative Services

201 West Broward Boulevard Room 513

Fort Lauderdale, Florida 33301-1885

Rev. Melda Harris 681 N.W. 37th Avenue

Lauderhill, Florida 23311

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 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. Some agencies allow a larger period within 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: 92-001338

Orders for Case No: 92-001338