STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MR. AND MRS. GRICE d/b/a ) GRICE FOSTER HOME, )

)

Petitioner, )

vs. ) CASE NO. 93-4951

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on November 5, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Willie and Geraldine Grice

18830 Northwest 43rd Avenue Carol City, Florida 33055

For Respondent: Hilda Fulriach

Department of Health and Rehabilitative Services

District 11 Legal Office

401 Northwest 2nd Avenue, N-1014 Miami, Florida 33128

STATEMENT OF THE ISSUES

The central issue in this case is whether the Petitioners are entitled to the renewal of their foster care license.

PRELIMINARY STATEMENT

This case began on June 1, 1993, when the Department of Health and Rehabilitative Services (Department) issued a letter advising Petitioners that their request for renewal of a foster home license had been denied. The denial alleged that Petitioners failed to meet Departmental standards. More specifically, the denial claimed that the Petitioners had failed to provide adequate supervision, had subjected the children to verbal abuse and inappropriate discipline, and had failed to maintain the home in an acceptable condition.

Thereafter, Petitioners, acting through their attorney, challenged the denial and requested an administrative hearing on the matter. The case was forwarded to the Division of Administrative Hearings for formal proceedings on August 27, 1993.

Prior to the hearing, Petitioners discharged their attorney who filed a letter on November 1, 1993, seeking to withdraw as counsel. Having confirmed such facts at the outset of the hearing, the attorney was granted leave to withdraw and such ruling is memorialized here.

At the hearing, the Department presented the testimony of the following witnesses: Fidelis Ezewike, a protective investigator employed by the Department; David Welch, a protective investigator supervisor; Michael Blum, a protective investigator; and Jacqueline Hodge, foster care licensing supervisor. The Department's exhibits numbered 1, 2, and 3 were admitted into evidence. The Department requested, and official recognition has been taken, of Rule 10M-6.05, Florida Administrative Code, and Section 409.175, Florida Statutes. The Petitioners testified in their own behalf.

The parties were granted ten days from the hearing date to file proposed recommended orders. Specific rulings on the proposed findings of fact submitted are included in the appendix at the conclusion of this order. A transcript of the proceedings has not been filed.

FINDINGS OF FACT

1. At all times material to this case, the Petitioners operated a shelter foster home in Dade County, Florida, pursuant to a license that was issued by the Department.

   
   

2. Mr. Ezewike investigated allegations of neglect at the Petitioners' home. According to Mr. Ezewike, children residing at the home were left without adult supervision. Such children ranged in ages from a few months to teenager.

   
   

3. Mr. Welch investigated allegations of verbal abuse against Petitioners. The report of these allegations was closed without classification. Thus the Petitioners were not identified as the perpetrators of verbal abuse.

   
   

4. According to Mr. Blum, who also visited the home, children residing with the Petitioners were left without adult supervision.

   
   

5. Mr. Blum observed that the interior of the house was dirty and messy. His report concluded that there were some indications of conditions hazardous to health as a result of the unkept home.

   
   

6. Mr. Blum further observed that a refrigerator at the Grice home was encircled by a chain with a lock which prevented it from being opened.

   
   

7. Mr. Blum also observed and overheard an interaction between Mr. Grice and some of the foster children. According to Mr. Blum, Mr. Grice used harsh and inappropriate language with the children.

   
   

8. Jackie Hodge, supervisor of the licensing unit, received a report from another worker responsible for supervising the Grice foster home. Such report cited Mr. Grice for inappropriate and harsh language.

   
   

9. According to Ms. Hodge, licensing standards, including the quality of care and supervision provided by foster parents, must be a part of the evaluation to determine the suitability of a home during a relicensing review.

10. According to Ms. Hodge, the Department does not permit foster parents to be verbally abusive, including harsh or inappropriate language, with the children in their care.

    
    

11. Ms. Hodge further explained that the condition of, and cleanliness of, the home are also part of a relicensing evaluation.

    
    

12. Based upon the Department's practice, the failure to meet any of the licensing standards is grounds for denying a renewal of license.

    
    

13. Ms. Hodge recommended that the Petitioners' home not be relicensed.

    
    

14. Petitioners were timely notified of the Department's denial and timely requested an administrative review.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

16. Section 409.175, Florida Statutes, provides, in part:

    
    

    409.175 Licensure of family foster homes, residential child-caring agencies, and child- placing agencies.

    
    

    (1)(a) The purpose of this section is to protect the health, safety, and well-being of all children in the state who are cared for by family foster homes, residential child- caring agencies, and child-placing agencies by providing for the establishment of licensing requirements for such homes and agencies and providing procedures to determine adherence to these requirements.

    * * *

    (4)(a) The department shall adopt and amend licensing rules for family foster homes * * * The requirements for licensure and operation of family foster homes, residential child- caring agencies, and child-placing agencies shall include:

    1. The operation, conduct, and maintenance of these homes and agencies and the responsibility which they assume for children served and the evidence of need for that service.

    2. The provision of food, clothing, educational opportunities, services, equipment, and individual supplies to assure the healthy physical, emotional, and mental development of the children served.

    3. The appropriateness, safety, cleanliness, and general adequacy of the premises, including fire prevention and

    health standards, to provide for the physical comfort, care, and well-being of the children served.

    * * *

    1. Standards for screening shall also ensure that the person:

       1. Has not been judicially determined to have committed abuse or neglect against a child as defined in s. 39.01(2) and (37); or

       2. Does not have a confirmed report of abuse, neglect, or exploitation as defined in s. 415.102(5) or abuse or neglect as defined in s. 415.503(6) which has been uncontested or upheld pursuant to the procedures of s. 415.103 or s. 415.504; or

    * * *

    (5)(a) An application for a license shall be made on forms provided, and in the manner prescribed, by the department. The department shall make a determination as to the good moral character of the applicant based upon screening.

    1. Upon application, the department shall conduct a licensing study based on its licensing rules; shall inspect the home or the agency and the records, including financial records, of the agency; and shall interview the applicant. The department may authorize a licensed child-placing agency to conduct the licensing study of a family foster home to be used exclusively by that agency and to verify to the department that the home meets the licensing requirements established by the department. Upon certification by a licensed child-placing agency that a family foster home meets the licensing requirements, the department shall issue the license.

       * * *

       1. A license issued for the operation of a family foster home or agency, unless sooner suspended, revoked, or voluntarily returned, will expire automatically 1 year from the date of issuance. Ninety days prior to the expiration date, an application for renewal shall be submitted to the department by a licensee who wishes to have his license renewed. A license shall be renewed upon the filing of an application on forms furnished by the department if the applicant has first met the requirements established under this section and the rules promulgated hereunder.

    * * * (6)(a) The department may issue a

    provisional license to an applicant who is unable to conform to the licensing

    requirements at the time of the study, but who is believed able to meet the licensing requirements within the time allowed by the provisional license. The issuance of a provisional license shall be contingent upon the submission to the department of an acceptable written plan to overcome the deficiency by the expiration date of the provisional license.

    1. A provisional license may be issued when the applicant fails to meet licensing requirements in matters that are not of immediate danger to the children and the agency has submitted a corrective action plan which is approved by the department. A provisional license may be issued if the screening material has been timely submitted; however, a provisional license may not be issued unless the applicant is in compliance with the requirements in this section for screening of personnel.

    2. A provisional license shall not be issued for a period in excess of 1 year and shall not be subject to renewal; and it may be suspended if periodic inspection by the department indicates that insufficient progress has been made toward compliance with the requirements.

    (7)(a) Authorized licensing staff of the department who are qualified by training may make scheduled or unannounced inspections of a licensed home or agency at any reasonable time to investigate and evaluate the compliance of the home or agency with the licensing requirements. All licensed homes and agencies shall be inspected at least annually.

    (b) The department shall investigate complaints to determine whether a home or agency is meeting the licensure requirements. The department shall advise the home or agency of the complaint and shall provide a written report of the results of the investigation to the licensee.

    (8)(a) The department may deny, suspend, or revoke a license.

    1. Any of the following actions by a home or agency or its personnel is a ground for denial, suspension, or revocation of a license:

       1. An intentional or negligent act materially affecting the health or safety of children in the home or agency.

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

       3. Noncompliance with the requirements for good moral character as specified in paragraph (4)(a).

       4. Failure to dismiss personnel found in noncompliance with requirements for good moral character.

    
    

17. In this case the Petitioners have not been cited as the perpetrators of abuse or neglect. They have successfully contested several such claims in the past. That their conduct has not risen to the level of abuse or neglect (as defined in Chapter 415, Florida Statutes) does not excuse the acts or omissions complained of such that Petitioners are automatically entitled to licensure renewal. They are not.

    
    

18. Issues of lack of supervision, harsh language toward children, and the cleanliness of the home are all related to whether this home should be approved for licensure. The Department's concern for the suitability of foster homes is mandated by the statute. The Petitioners have denied any wrongdoing yet have not presented any credible evidence in support of their position. In contrast, the Department has presented the observations of three investigators who visited the home. Their observations raise a legitimate concern for the children placed in the home.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a final order denying Petitioners' request for licensure renewal.

DONE AND RECOMMENDED this 6th day of January, 1994, in Tallahassee, Leon County, Florida.

Joyous D. Parrish 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 6th day of January, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4951

Rulings on the proposed findings of fact submitted by the Petitioners:

1. None submitted.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 1 through 14 are accepted.

COPIES FURNISHED:

Hilda Fluriach

District 11 Legal Office Department of Health and Rehabilitative Services

401 N.W. 2nd Avenue, N-1014 Miami, Florida 33128

Willie and Geraldine Grice 18830 N.W. 43rd Avenue Carol City, Florida 33055

Kim Tucker General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Bonita Jones-Peabody The Executive Building 3000 Biscayne Boulevard

Suite 300

Miami, Florida 33137

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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

MR. & MRS. GRICE d/b/a GRICE FOSTER HOME,

Petitioner, CASE NO.: 93-4951 RENDITION NO.: HRS-94-115-FOF

vs.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). The Recommended Order entered January 6, 1994 by Hearing Officer Joyous D. Parrish is incorporated by reference.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order.

Based upon the foregoing, it is

ADJUDGED, that the application for foster care license renewal of Willie and Geraldine Grice be and the same is hereby DENIED.

DONE and ORDERED this 23 day March, 1994, in Tallahassee, Florida.

H. James Towey, Secretary Department of Health and

Rehabilitative Services

by Linda F. Radigan

Assistant Secretary for Children and Families

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

Joyous D. Parrish Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Hilda Fluriach, Esquire District 11 Legal Office

401 N.W. Second Avenue Suite N-1014

Miami, FL 33128

Bonita Jones-Peabody, Esquire The Executive Building

3000 Biscayne Boulevard

Suite 300

Miami, FL 33137

Willie and Geraldine Grice 18830 N.W. 43rd Avenue Carol City, FL 33055

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U.S. Mail this 6th day of April, 1994, in Tallahassee, Florida.

Robert L. Powell, Sr., Agency Clerk

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building E, Room 200 Tallahassee, FL 32399-0700 904/488-2381

Docket for Case No: 93-004951

Orders for Case No: 93-004951