STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3740

)

AUDREY JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 30, 1996, at Miami, Florida, before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Colleen Farnsworth, Esquire

Department of Health and Rehabilitative Services

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

For Respondent: Harry G. Robbins, Esquire

Presidential Circle Building 4000 Hollywood Boulevard

Suite 630 North

Hollywood, Florida 33021 STATEMENT OF THE ISSUE

The issue for determination is whether Respondent's foster care license should be renewed by Petitioner.

PRELIMINARY STATEMENT

By letter dated June 14, 1995, the Department of Health and Rehabilitative Services (Petitioner) notified Audrey Jones (Respondent) that her foster care license would not be renewed and that its decision was based upon a proposed confirmed abuse report. By letter dated July 13, 1995, Respondent, through counsel, contested Petitioner's decision and requested a formal administrative hearing. On July 26, 1995, the matter was referred to the Division of Administrative Hearings.

At hearing, Petitioner presented the testimony of nine witnesses and entered five exhibits into evidence. Respondent testified in her own behalf, presented the testimony of one witness and entered one exhibit into evidence.

A transcript of the formal hearing was not ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the hearing. Only Petitioner submitted proposed findings of fact which are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Audrey Jones (Respondent) was granted a foster care license by the Department of Health and Rehabilitative Services (Petitioner) in August 1994. Respondent sought to renew her foster care license. By letter dated June 14, 1995, Petitioner notified Respondent that her foster care license would not be renewed because of a proposed confirmed abuse report.

   
   

2. On July 6, 1994, Respondent signed an agreement, entitled "Discipline Policy Agreement", agreeing to comply with Petitioner's discipline policy. The Discipline Policy Agreement provides in pertinent part:

   
   

   The following disciplinary practices are FORBIDDEN in the caring for your foster child. Failure to comply may result in an investiga- tion and possible closure of your home.

   * * *

   1. Hitting a child with an object.

   2. Slapping or spanking a child, or ANY OTHER physical discipline.

      
      

3. On August 23, 1994, as a condition of licensure, Respondent signed an agreement, entitled "Agreement To Provide Substitute Care For Dependent Children", with Petitioner. This agreement provides in pertinent part:

   
   

   As substitute care parent(s) for the Department of Health and Rehabilitative Services, we agree to the following conditions considered essential for the welfare of this dependent child placed in our home:

   * * *

   2. We are fully and directly responsible to the department for the care of the child.

   * * *

   1. We will comply with all requirements for a licensed substitute care home as prescribed by the department.

   2. We will immediately report any injuries or illness of a child in our care to the department.

   * * *

   19. We will abide by the department's discipline policy which we received during the MAPP training.

   
   

4. In May, 1995, Respondent was the foster parent of B. W., a female child. At that time, B. W. was nine years old and had been in Respondent's care for less than one year.

   
   

5. On May 22, 1995, B. W. was examined by a physician of Petitioner's Child Protective Team as a result of an abuse report made against Respondent that same day. The examination revealed multiple linear abrasions, scabbed

   linear lesions, and bruises on B. W.'s upper thighs and buttocks, with the injured areas being tender. The injuries had been inflicted with a brush-type instrument and had been inflicted within three days prior to the examination.

   
   

6. The lesions and bruises could not have been, and were not, self- inflicted.

   
   

7. Respondent inflicted the lesions and bruises upon B. W. with a brush.

   
   

8. B. W. has been in several foster homes over the years. She admitted that she has told several truths and "stories" about former foster homes. However, in this situation, B. W. is found to have spoken the truth.

   
   

9. On May 22, 1995, B. W. informed Petitioner's abuse investigator, the examining physician, and a supervisor at the Mental Health program that she attended that Respondent had punished her with a brush and that the lesions and bruises were a result of that punishment. All of these individuals observed the injuries on May 22, 1995.

   
   

10. During the three-day period prior to the report and discovery of the lesions and bruises, B. W. was in the custody and control of Respondent. At no time did Respondent seek medical treatment for B. W.'s injuries. Nor did Respondent notify Petitioner of the injuries.

    
    

11. Respondent violated both the Agreement to Provide Substitute Care for Dependent Children and the Discipline Policy Agreement that she had with Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. In the instant case, Petitioner provided Respondent with notice that her foster care license would not be renewed. Petitioner argues that this case is a denial of renewal, not a revocation, of licensure. Petitioner's argument is persuasive.

    
    

14. Respondent, as the applicant for licensure, bears the burden of showing that she is entitled to renew her license. Florida Department of Transportation v. J. W. C. Company, 396 So.2d 778 (Fla. 1st DCA, 1981); Balino

    v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

15. Section 409.175, Florida Statutes (Supplement 1994), provides in pertinent part:

    
    

    (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, residential child-caring agencies, and child- placing agencies.

    
    

16. Rule 10M-6.012, Florida Administrative Code, provides:

    
    

    Section 409.175, F. S., mandates that the department establish minimum standards, or rules for the types of care defined in the statute. These standards, once promulgated, have the full force and effect of law. The licensing rules specify a level of care below which programs will not be able to operate.

    The level of care embodied in the rules is the most that the department can demand of person or program in order for it to keep its license.

    Licensing rules detail the specific requirements placed on persons who are subject to the rules.

    
    

17. Rule 10M-6.024, Florida Administrative Code, provides in pertinent part:

    
    

    (1) Responsibilities of the Substitute Parent to the Child.

    * * *

    (b) Family Care Activities.

    * * *

    1. Discipline.

       1. The substitute care parents must discipline children with kindness, consistency, and understanding, and with the purpose of helping

    the child develop responsibility with self-control.

    * * *

    1. The substitute care parents must not subject children to cruel, severe, humiliating or unusual punishment, for example, to use soap to wash out the mouth, eating hot sauces or pepper, placing

       in hot water, kneeling on stones, etc.

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

    
    

18. Respondent failed to meet her burden of proof by showing that she is entitled to renewal of her foster care license. Respondent failed to meet Petitioner's minimum standards for licensure.

    
    

19. The evidence demonstrates that Respondent subjected the foster child placed in her care to cruel, severe, and unusual punishment. Moreover, the evidence demonstrates that Respondent used corporal punishment on the foster child. All of Respondent's actions are contrary to Petitioner's Rules and the foster care agreements that Respondent entered into with Petitioner.

    
    

20. Even though a determination has been made that Respondent used corporal punishment and that the punishment was cruel, severe, and unusual, no determination is made as to whether Respondent committed physical abuse. The issue of physical abuse was not before this hearing officer.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services deny

the renewal of Audrey Jones' foster care license.

DONE AND ENTERED this 29th day of March, 1996, in Tallahassee, Leon County, Florida.

ERROL H. POWELL, 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 29th day of March, 1996.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact

16. Partially accepted in findings of fact 1 and 9.

NOTE - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the more credible evidence, argument, or a conclusion of law.

COPIES FURNISHED:

Colleen Farnsworth, Esquire Department of Health and

Rehabilitative Services

401 Northeast Second Avenue Suite N-1014

Miami, Florida 33128

Harry G. Robbins, Esquire Presidential Circle Building 4000 Hollywood boulevard

Suite 630 North

Hollywood, Florida 33130

Richard Doran General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sandy Coulter Acting Agency Clerk

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 ten 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: 95-003740

Orders for Case No: 95-003740