STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5528

)

PAULINE COLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on November 20, 1992 and April 22, 1993 in Tampa, Florida.

APPEARANCES

For Petitioner: Jack Emory Farley, Esquire

HRS District IV Legal Office, Room 500 4000 West Dr. Martin Luther

King Jr. Boulevard Tampa, Florida 33614-7093

For Respondent: James S. Garbett, Esquire

8910 North Dale Mabry Highway, Suite 22 Tampa, Florida 33614

STATEMENT OF THE ISSUES

Whether Petitioner's foster care license should be revoked because she allegedly lacks the ability to provide for the psychological development of foster children as required in Section 409.175(4)(a)2, Florida Statutes and Rule 10M-6.005(3)(i), Florida Administrative Code.

PRELIMINARY STATEMENT

By its administrative complaint filed August 4, 1992, Petitioner, Department of Health and Rehabilitative Services, seeks to revoke Respondent's foster care license based on the allegation that she "lacks the ability to provide for the psychological development of foster children" as required in Subsection 409.175(4)(2)2, Florida Statutes and Rule 10M-6.005(3)(i), Florida Administrative Code. Respondent, through counsel, filed an answer to the administrative complaint essentially denying the material allegation that she lacks the ability to provide for the psychological development of foster children, averred that she had followed and complied with Petitioner's rules and regulations to serve as a foster parent and requested that the complaint filed herein be dismissed or alternatively that a formal administrative hearing be

held. In compliance with Respondent's request, Petitioner referred this matter to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing pursuant to Chapter 120, Florida Statutes. Following responses from the parties, the matter was noticed for hearing for November 20, 1992 and was not completed during the time allotted for the hearing. Thereafter, it was rescheduled for hearing on April 22, 1993 and was concluded at that time.

At the hearing, Petitioner presented the testimony of Olga Peterson, Michael Katz and Respondent testified on her own behalf. Exhibits A-N, with the exception of Exhibit L which was rejected, were offered and received in evidence at the hearing.

Following the hearing, the parties filed closing arguments which were considered in preparation of this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, the following relevant facts are found.

1. Petitioner, State of Florida, Department of Health and Rehabilitative Services, is the licensing and regulatory agency in Florida for the issuance of foster home licensing.

   
   

2. On January 16, 1991, Petitioner issued to Respondent, Pauline Cole, a provisional certificate of license for a foster home for her residence situated at 3501 River Grove Drive in Tampa, Florida indicating that she had complied with the minimum standards set by Petitioner for a foster home and approved her foster home application. By its terms, the license was effective for a period of one year from the above-referenced date unless renewed, extended, withdrawn, or revoked for cause.

   
   

3. To demonstrate her eligibility for licensure, Respondent successfully completed several courses including "a clinical interventions for psychiatric nurses: frameworks for success" sponsored by the Florida Mental Health Institute in Tampa, Florida with six contact hours on June 15, 1990. On December 17, 1990, Respondent successfully completed 30 hours of training in "model approach to partnership and parenting (MAPP)". Additionally, Respondent took several other courses dealing with parenting and caring for foster children.

   
   

4. On November 21, 1991, Petitioner filed an application to renew her license to provide for foster home care for dependent children. As a result of that application, Petitioner's agents visited Respondent's home to determine whether it still complied with standards set by Petitioner for licensure.

   
   

5. During a foster parents meeting in June, 1992, Respondent inquired of one of Petitioner's agents whether or not Petitioner had a policy of surveilling foster parents by following them or otherwise monitoring their activities and particularly their vehicular travels. Petitioner's agent advised Respondent that that was not HRS's policy, i.e., to surveil foster care parents whereupon Respondent related that she felt that she had been followed by Petitioner's child protective investigators. Respondent related several steps that she undertook to determine whether or not she was in fact being followed. Specifically, Respondent would change directions or would make turns from main thoroughfares to see if the car that she considered to be following her would

   make a similar change in direction. Respondent did not take any evasive measures which in any manner endangered the lives of the foster children that were in her care.

   
   

6. During the time of her foster care licensure, Respondent had two foster care children ages three and four.

   
   

7. During the sessions wherein Respondent's application for licensure was discussed with Petitioner's agents, Respondent again expressed concern that she was being followed, however, during the last session during March 1992, Respondent advised Petitioner that while she still had her doubts that she was not being followed, she was no longer concerned that she was being followed to the point of taking evasive actions to try to verify her concerns.

   
   

8. During the final meeting wherein Petitioner's agents inquired of Respondent if she still had the paranoid ideation that she was being followed, Respondent basically advised Petitioner's agents that "she was leaving the matter in the hands of the Lord."

   
   

9. Petitioner's agents basically advised Respondent that if they (Petitioner's agents and Respondent) could put to rest their concern that Respondent no longer had the paranoia of being followed, Respondent could be relicensed. 1/

   
   

10. Respondent earned a bachelor of science degree in nursing from Tuskeege Institute in 1958. She earned a master's degree from the University of South Florida in industrial and technical education during 1979. She is certified as a registered nurse and a community education instructor.

    Respondent was employed as a registered nurse and nursing instructor at the Veteran's Administration (VA) Hospital in Montgomery, Alabama, Gainesville and Tampa, Florida during the years 1962 through 1980. She retired from the VA in 1980. From 1989 to the present time, Respondent has been employed as a community education instructor at Hillsborough Community College in Tampa, Florida. Respondent holds memberships in several professional and civic organizations and has been very active in community service organizations in Hillsborough County. Among the awards and honors she received was a nominee in Who's Who in American Nursing during 1993-94, a nominee for the achievement award for advocacy/public service at the Tuskeege National Alumni Association during 1992; co-founder, Minority Nurses Association of the Tampa Bay Area and an award for dedicated service, Iota Phi Lambda Sorority, Southern Region, during the years 1983-1987, among others.

    
    

11. Respondent has been able to provide a great deal of parenting and inspiration to her two foster children during the times that she cared for them until they were separated from her by Petitioner's agents during 1992. Based on her nursing background and the amount of time that she has been able to devote to her children, she has served as a model foster parent since the time that she was issued a provisional license during 1991.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

14. The authority of the Petitioner is derived from Chapter 409, Florida Statutes.

    
    

15. Petitioner has the burden of establishing, by a preponderance of substantial competent evidence, that Respondent lacks the ability to provide for the psychological development of foster children warranting revocation of her license pursuant to Subsection 409.175(4)(a), 2, Florida Statutes.

    
    

16. Petitioner failed to carry its burden in this regard and, indeed, Respondent demonstrated, to the contrary, that she possesses the ability and is providing for the psychological development of the foster children that Petitioner entrusted to her.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner enter a final order granting Respondent's application to be relicensed as a foster home provider assuming, of course, that she complies with other licensing requirements.

DONE AND ENTERED this 12th day of July, 1993, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 12th day of July, 1993.

ENDNOTE

1/ Specifically, Petitioner's agents mentioned several other matters respecting Respondent's relicensure applications such as radon testing and the relocation and addition of one fire extinguisher. These matters were not stated reasons for Petitioner's decision to non-renew Petitioner's foster home license and are not addressed herein.

COPIES FURNISHED:

Robert Powell, Agency Clerk Department of Health and

Rehabilitative Services 1313 Winewood Boulevard

Tallahassee, Florida 32399-0792

John Slye, General Counsel Department of Health and

Rehabilitative Services 1313 Winewood Boulevard

Tallahassee, Florida 32399-0792

Jack Farley, Esquire

HRS District VI Legal Office 4000 W. Dr. Martin Luther King

Jr. Blvd.

Tampa, Florida 33614-7093

James S. Garbett, Esquire

8910 N. Dale Mabry Hwy.-Suite 22

Tampa, Florida 33614

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: 92-005528

Orders for Case No: 92-005528