STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEMINTINE LYONS FOSTER HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5975

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on May 31, 1994.

APPEARANCES

For Petitioner: Ann Corya Curvin, Esquire

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

160 Governmental Center Pensacola, Florida 32501

For Respondent: Fredrick Gant, Esquire

Allbritton & Gant

322 West Cervantes Street Pensacola, Florida 32501

STATEMENT OF THE ISSUES

The issue to be decided in this case is whether the Petitioner's, Clemintine Lyons, foster home relicensure application should be approved.

PRELIMINARY STATEMENT

In 1992, the Petitioner, Clemintine Lyons, requested that she be relicensed as a foster parent in Escambia County, Florida. By letter dated August 10, 1993, the Respondent, the Department of Health and Rehabilitative Services, ("HRS" or "Department") notified Clemintine Lyons that her request for relicensure was denied. The Department's denial letter cited numerous concerns and problems with respect to Petitioner's prior operation of a foster home. The denial letter stated the following violations of Chapter 409, Florida Statutes, and Rule 10M-6, Florida Administrative Code:

1. Failure to ensure that only non-corporal disciplinary practices are utilized.

2. Subjection of foster children to verbal abuse and derogatory remarks.

3. Inappropriate and excessive assignment of chores to foster children.

4. Inappropriate punishment of foster children for bedwetting.

5. Inappropriate limitation of foster children's contact with family members.

6. Failure to provide a nurturing and loving environment for foster children.

7. Failure to reflect flexibility and tolerance in care of foster children.

8. Unwillingness to accept supervision by and work cooperatively with Department staff.

The August 10, 1993, letter advised Petitioner of her right to an administrative hearing pursuant to Section 120.57, Florida Statutes. Petitioner requested such a hearing, and the case was referred to the Division of Administrative Hearings.

At the hearing, the Respondent presented five witnesses: Donna Mims, the Operations Administrator for the Central Licensing Unit in District One; Kathy Perkins Guy, Counselor in the Licensing Unit and former Protective Services worker for HRS; Sue Brown, Supervisor of the Foster Home Licensing Unit; Ann Lance Peters, former Senior Human Services Program Analyst; and Clara Mitchell, friend of the Petitioner. In addition, the Respondent submitted the telephone depositions of Robin Williams, Rasheen Williams and Shykimma Williams. The Petitioner testified in her own behalf and presented the testimony of two additional witnesses: Reverend Leverette, pastor of First Community Baptist Church, and Ora Lewis, a neighbor of the Petitioner. On August 11, 1994, after the hearing, by agreement of the parties, Petitioner submitted the deposition of Wendall Dean, a friend of Petitioner.

FINDINGS OF FACT

1. Clemintine Lyons was first licensed as a foster home in 1988. The licensing staff had several concerns at that time. These concerns included the fact that Ms. Lyons had no prior parenting experience and was taking medication for depression. However, those concerns were addressed and Ms. Lyons was licensed.

   
   

2. During the initial licensing period, the Department had difficulty with Ms. Lyons regarding her willingness to work cooperatively with the Department regarding the children in her care and to contact the Department before she made major decisions regarding the children in her care, such as parental visitation. For example, against the wishes of HRS and as a form of punishment for Dorinda, Ms. Lyons kept Dorinda from attending an HRS picnic for prospective adoptees to meet adoptive parents. The HRS staff was concerned about this incident because they were trying to arrange an adoption for Dorinda and the picnic was an important step in that process. Ms. Lyons was also unhappy about HRS counselors trying to have private conversations with Dorinda.

   
   

3. Further, on one occasion, Ms. Lyons left the HRS district where she and Dorinda lived to take Dorinda to Dorinda's mother's home in another district to retrieve some clothing given to Dorinda by Ms. Lyons which had been left at the mother's home. Ms. Lyons made the trip because Dorinda was short of clothing. Ms. Lyons took Dorinda to her mother's home without notifying any HRS

   counselors. When Ms. Lyons was ready to leave, Dorinda refused to get in the car, so Ms. Lyons called the police to assist her in taking Dorinda back to her house. The incident was of concern because Ms. Lyons unilateral action could have potentially placed Dorinda in a dangerous situation, given the fact that the abusive parent was still in the home. In short, both incidents involving Dorinda Small demonstrated very poor judgment on the part of Ms. Lyons regarding the care and protection of a child in her care.

   
   

4. Department personnel also testified about another incident which occurred during initial licensure of Ms. Lyons regarding two brothers, a six- year old and an eight-year old, she had just received as foster children in her home. The same day that they were brought to the home, they called a taxi while Ms. Lyons was taking a nap and had themselves driven to their aunt and uncle's home. However, the evidence regarding the elopement of these two boys was very vague and cannot be used to infer a lack of ability to care for foster children on the part of Ms. Lyons, especially since foster children come to foster care with a lot of problems including disciplinary and emotional problems.

   
   

5. Additionally, in 1989, Ms. Lyons applied to the Department to become an adoptive parent. While going through the training and background checks, the Department, for the first time, discovered an incident involving a foster child who had been placed in Ms. Lyons' home. Clara Mitchell, a neighbor and friend of Ms. Lyons, informed the Department that she had invited Ms. Lyons and Dorinda Small, a foster child living in Ms. Lyons' home, to her home for Thanksgiving. Before eating, Ms. Lyons fixed a plate of food for Dorinda. When Dorinda noticed that tomatoes had been placed on her plate, she told Ms. Lyons that she did not like them and would not eat them although she had eaten tomatoes before. Ms. Lyons became upset and hit Dorinda across the face and told her to go home. Dorinda left Ms. Mitchell's home, but had to wait outside for Ms. Lyons because Ms. Lyons' door was locked. Ms. Lyons stayed at Mrs. Mitchell's home for about

   45 minutes to an hour before going back home and letting Dorinda come inside. Once the Department learned of this incident, the Department made it very clear to Ms. Lyons that the Department's policy prohibited the use of any corporal punishment on a foster child. Ms. Lyons admitted she was aware of this policy and that she understood she was not to use corporal punishment on a foster child again.

   
   

6. However, despite the problems with Dorinda Small and the two boys, Ms. Lyons was relicensed on the recommendation of a licensed counselor who felt that because of the desperate need for foster parents, Ms. Lyons with more training and closer supervision, would learn to grow into the role of a foster parent.

   
   

7. Towards that end, Ms. Lyons voluntarily agreed to go through additional training known as the Model Approach to Partnerships and Parenting. The model approach program was a thirty-hour training seminar. One of the topics specifically addressed was role identification, specifically the role of a foster parent in relation to HRS, the foster child and the biological family. This training was in addition to the training that Ms. Lyons went through before her initial licensure. In addition, Ms. Lyons was sent information on several different occasions which outlined Ms. Lyons' duties and roles in interacting with HRS, the foster child and the biological family. One of the primary duties of the foster parent is to provide a caring environment for the foster child as well as consult with either HRS or the biological parent before making any major decisions regarding the foster children.

8. It quickly became apparent that the additional training had not improved Ms. Lyons' ability as a foster parent. From July 17 through August 28, 1991, three foster children were placed in Ms. Lyons' home. The children's mother, Robin Williams, had requested foster care assistance for her six children, while Ms. Williams went through voluntary drug rehabilitation. The three oldest, Rasheen, age ten, Shykimma, age eight, and Raheem, age seven, were placed with Ms. Lyons The voluntary aspects of Ms. Williams' decision meant that she was under no court restrictions as to visitation or telephone contact and could remove her children at any time from foster care.

   
   

9. Problems with the foster arrangement arose almost immediately. The protective services worker for the Williams', Kathy Perkins Guy, began receiving complaints about Ms. Lyons from Ms. Williams, the Williams children and counselors working with Ms. Williams in her drug treatment.

   
   

10. One complaint by the Williams family against Ms. Lyons was that she was not permitting visitation as often as the Williams and HRS felt should be permitted. However, after complaints by Ms. Williams, the Williams' were satisfied with the frequency of visitation. On the other hand, HRS tried to show continued lack of cooperation by Ms. Lyons when Kathy Perkins Guy, the Williams' case worker, tried to arrange visitation on one particular Saturday, but Ms. Lyons told her that she had too many errands to run and it was not convenient. The inconvenience was legitimate because Ms. Lyons sister had died and she was taking care of the funeral arrangements. However, Ms. Lyons never communicated these facts to the HRS caseworker. It is important to note that Ms. Guy did not require Ms. Lyons to facilitate visitation in this instance. Ms. Guy only asked if Ms. Lyons would. Such "asking" by HRS leaves the clear impression that the licensee may decline the request without adverse impact on

    that person's foster license or future licensure. The incident does demonstrate poor communication by both HRS and Ms. Lyons. Additionally, Ms. Lyons also did not make arrangements for the Williams children to call their mother on a daily basis, but restricted them to one phone call two times a week. Ms. Williams deposition testimony indicated that the frequency of telephone calls was sufficient. Again, Ms. Guy had requested more frequent telephone contact. Ms. Lyons declined because getting through to the mother at the addiction center was difficult to arrange because of the center's restrictions on the mother. Again, HRS only asked for more frequent telephone contact. HRS did not require it.

    The clear impression to the licensee was that she could decline the request.

    
    

11. Ms. Williams also complained that Ms. Lyons had cut her daughter Shykimma's hair without first consulting her. Such consultation with the parent is normally required by the Department. The children complained that they were not permitted to wear underwear while they slept at night and were not being allowed to sleep on pillows or use blankets. When questioned, Ms. Lyons stated that the children were placed in her home with very few clothes, and that she did not want to have to wash clothes every day. However, a foster parent is instructed to have spare clothing on hand or to be prepared to supply spare clothing. The Williams' felt they had adequate clothing but that their clothes often smelled bad the second day. As to the lack of pillows and blankets, she said that the kids did not need blankets because it was summer and the children did have sheets. She also said she did not want the children messing up her pillow shams but that they had other pillows to sleep with. The Williams' depositions demonstrated they had other pillows which they could use. The evidence also demonstrated that the children were dressed appropriately for bed since they slept in pajamas. In addition, Ms. Lyons made the children recite Bible verses as a punishment even though they were Muslim. On one occasion, Ms. Lyons had Rasheen recite a verse to Ms. Guy, which he interpreted to Ms. Guy to

    mean that he had to obey Ms. Lyons. Again the evidence regarding these incidents was vague and seemed to be engendered more by the Williams children's dislike of Ms. Lyons and anything she did, as well as a biological mother who was frantic over her children. Additionally, the evidence regarding the Bible verses was equivocal as to the appropriateness of such an action given the historical nature of the Muslim and Christian religions' roots in the Old Testament.

    
    

12. Ms. Lyons also brought the children to work with her. At that time she was employed cleaning offices after hours, and she put the children to work cleaning toilets, sinks and vacuuming the floor. However, there was no convincing evidence that these activities were inappropriate in any way.

    
    

13. On the other hand, Ms. Lyons called Rasheen "stupid." One of these name-callings escalated into an argument with Rasheen, which Ms. Lyons ended by calling a policeman friend of hers to talk to him about showing respect. Ms. Lyons did not intend this name to be abusive, but it was readily apparent that the children took the names as derogatory. The use of such references demonstrates poor judgment in caring for foster children.

    
    

14. Ms. Lyons also had punished Shykimma for bedwetting by making her stay in her room for the rest of the day, which violates the disciplinary code for foster parents. Such punishment is a clear violation of HRS's disciplinary code for foster parents.

    
    

15. Finally, Ms. Lyons spanked Rasheen with a flip-flop shoe for spilling rice on the floor. Again Ms. Lyons knew such discipline violated the HRS disciplinary code for foster parents. Additionally, Ms. Lyons had been warned earlier about using corporal punishment on a foster child when HRS had learned about Ms. Lyons slapping Dorinda Small.

    
    

16. The Williams children were removed from Ms. Lyons home in August 1991. At that time, Sue Brown, supervisor of the foster care licensing unit went to Ms. Lyons' home to discuss with her the problems with the Williams' placement. During the discussion, Ms. Lyons admitted to punishing Shykimma for wetting the bed by making her stay in her room for 35 minutes. Ms. Brown pointed out that children are not to be punished for bedwetting problems, but Ms. Lyons had no response. Ms. Brown spoke to the Williams children after meeting with Ms. Lyons, and they expressed near hatred for Ms. Lyons. They said she was very demanding and that they never wanted to go back there.

    
    

17. In this case, it is fairly apparent that HRS is tired of trying to work with Ms. Lyons as a foster parent and that in its attempt not to relicense her the Department listed every perceived "affront" of Ms. Lyons towards HRS. Most of these complaints were spurious and could not form the basis for an adverse licensure decision. However, HRS did succeed in demonstrating that Ms. Lyons committed at least three willful violations of the rules governing foster care parents. Those violations were punishment for bedwetting, name calling and two incidents of administering corporal punishment. Moreover, because these violations were willful and in disregard of the disciplinary rules of HRS of which Ms. Lyons had knowledge, Ms. Lyons is not qualified for licensure.

    
    

    CONCLUSIONS OF LAW

    
    

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

19. 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.

    
    

20. Rule 10M-6.130, Florida Administrative Code, lists the following responsibilities of foster parents:

    
    

    (5)(d) Be supportive in every possible way

    in helping a child to be reunited with the family when reunification is the goal of he performance agreement or permanent placement plan;

    1. Accept a child's background, avoid a negative attitude toward a child's family and believe in the family potential of the child's family for growth and change;

    2. Cooperate with a visitation plan willingly and with a positive attitude;

    3. Respect the rights of the family, especially the casework plan for a child;

    4. Cooperate with a case plan for a child.

       
       

21. Rule 10M-6.024, Florida Administrative Code, lists the following requirements for substitute care parents:

    
    

    (1)(a)1. To give love, acceptance, and care to a child without expecting a demonstration of appreciation from the child.

    * * * (1)(b)5. Discipline

    * * *

    1. The substitute care parents must not

       allow children in care to be subjected to verbal abuse, derogatory remarks about themselves and family members or threats of removal from home.

    2. The substitute care parents must not use corporal punishment of any kind.

    * * *

    1. The substitute care parents must not punish children for bed wetting or errors which occur during the toilet training process.

       1. Substitute care parents must not threaten a child with removal or with a report to authorities as punishment for behavior . . .

    (1)(c) Substitute Care Parents Responsibilities

    1. Substitute care parents are expected to work cooperatively with the counselor as a member of the treatment team in seeking counseling, participating in the consultation, and preparing and implementing the performance agreement or permanent placement plan for each child.

    * * *

    1. Responsibilities of the substitute Care Parents to the Child's Family.

       1. The substitute care parents must participate in planning visits for the child with his parents and family members.

    * * *

    (c) The substitute care parents must allow children and their family members to communicate by mail or by telephone in accordance with the child's performance agreement, or permanent placement plan.

    * * *

    (4) Responsibilities of the Substitute Care Parents to the Deparment

    * * *

    (j) The substitute care parents must be able to accept supervision by department staff and participate in and support case plans for children in their homes

    . . .

    
    

22. Since relicensure is not a ministerial act on the part of HRS, Petitioner has the burden of proof in this proceeding to show that she has met all of the requirements for foster home licensure and that she deserves the privilege of being relicensed as a foster parent. Rebecca Arriola v. Department of Health and Rehabilitative Services, 15 FALR 1393, (1992); Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

23. Foster parenting is limited to those people who can successfully balance the needs of the children with those of the biological parents, while at the same time recognizing their responsibility to HRS, the supervising agency. This is a very difficult task. In this case, the Petitioner has not demonstrated that she has that ability because she willfully violated the rules of the Department. Even if the burden of proof were placed on the Department, HRS has clearly and convincingly shown that the Petitioner is incapable of successfully foster parenting children. It is apparent from the record that the Petitioner does not have the tolerance and flexibility needed to be an effective foster parent in that she is incapable of disciplining children in her care without violating the rules of the Department.

    
    

24. Foster parenting involves more than providing food and a bed. The rules and statutes under Florida law make it clear that a foster parent has competing responsibilities to the children in their care. They must provide a nurturing, loving environment to children whose lives have been uprooted. The children placed in foster care are taken from the only environment that they have known and placed with strangers. Not only must these children adjust to their new "families" and new home and new rules, but they must do this without the benefit and security of their own families. At the same time, foster parents need to understand their limitations with the children. They must cooperate with HRS and comply with court orders to reunite the children with their biological parents and aid the children in rebuilding or maintaining a good relationship with their parents. Their ultimate goal is to provide a stable family environment for the children so that the biological parents can work through their own problems without the distraction of worrying about their children's happiness and security. Due to the special needs of foster children who are emotionally and physically uprooted from their own families, the Department must maintain high standards and carefully review and evaluate foster parents to ensure that they are capable of caring for and providing a loving environment for children placed in their home.

25. It appears from the record that the Department made every possible attempt to improve Ms. Lyons' abilities as a foster parent. Her experience with the Williams children indicates that the Department was unsuccessful in its attempt. Given these facts, Ms. Lyons is not entitled to relicensure as a foster home.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is therefore

RECOMMENDED:

that the Department deny Petitioner's application for relicensure as a foster home.

DONE and ORDERED this 28th day of October, 1994, in Tallahassee, Florida.

DIANNE CLEAVINGER

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 28th day of October, 1994.

APPENDIX 93-5975

1. The facts contained in paragraphs 1, 4, 8 and 22, of Petitioner's Findings of Fact are adopted in substance, insofar as material.

2. The facts contained in paragraphs 2, 3, 5, 6, 7, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20 and 21 of Petitioner's Proposed Findings of Fact are subordinate.

3. The facts contained in paragraphs 9 and 14 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

4. The facts contained in paragraphs 1, 2, 5, 6, 7, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.

5. The facts contained in paragraphs 3, 4, 8 and 11 of Respondent's Proposed Findings of Fact are subordinate.

COPIES FURNISHED:

Ann Corya Curvin, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services

160 Governmental Center Pensacola, Florida 32501

Fredrick Gant, Esquire Allbritton & Gant

322 West Cervantes Street Pensacola, Florida 32501

Robert L. Powell, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Kim Tucker General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Room 407

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: 93-005975

Orders for Case No: 93-005975