STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5627

)

PATRICIA AND LUTHER TONEY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 22, 1996, in Orlando, Florida.

APPEARANCES

For Petitioner: Laurie A. Lashomb, Esquire

Department of Health and Rehabilitative Services

District Seven Legal Office

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

For Respondent: Gregory H. Hammel, Esquire

932 Wickham Road

West Melbourne, Florida 32904 STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner should revoke Respondents' license to operate a foster home for dependent children.

PRELIMINARY STATEMENT

On September 28, 1995, Petitioner notified Respondents that Respondents' license to operate a foster home for dependent children was being revoked.

Respondents timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of four witnesses and submitted two exhibits for admission in evidence. Respondent, Patricia Toney, testified in her own behalf and submitted no exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the formal hearing filed with the undersigned on June 10, 1996. Petitioner timely filed its proposed recommended order ("PRO") on June 17, 1996. Respondents timely filed their PRO on June 20, 1996. Proposed findings of fact in the parties' PROs are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses to operate foster homes for dependent children. Petitioner is also responsible for prosecuting license discipline proceedings.

   
   

2. In 1994, Respondents applied for their initial license to operate a foster home. The license was granted on June 22, 1994.

   
   

3. On November 26, 1994, Ms. Robin Barwick left Jordan, her three year old daughter, in the care of Respondents. Jordan is not a foster care child. Respondents baby-sit children such as Jordan in addition to operating a foster home.

   
   

4. Respondents left Jordan in the care of Shanda Toney, Respondents' teenage daughter. Shanda was approximately 19 years old at that time and is now

   21 years old. Ms. Barwick knew that Respondents would be away from the home and that Shanda would be the primary care giver that day.

   
   

5. Respondents did not return home until after 3:00 p.m. on November 26, 1994. Shanda cared for Jordan and several other children until Respondents returned.

   
   

6. Jordan is legally blind and has multiple disabilities. Jordan has braces on her feet and can not walk.

   
   

7. When Ms. Barwick delivered Jordan to Respondents at 5:00 a.m. on November 26, 1994, Jordan had no bruises or other marks on her except two "shot marks." The "shot marks" were minor.

   
   

8. When Ms. Barwick picked up Jordan at 3:00 p.m. on November 26, 1994, Jordan had multiple injuries. The injuries included an abrasion to her chin, a severe bruise around her left eye, a red abrasion to her left cheek, a bloody nostril, scratch marks on her right eye, bruises on both legs, and bruises to her back and arm.

   
   

9. Ms. Barwick called for an ambulance. The ambulance took Jordan to Holmes Regional Medical Center. Jordan was admitted on November 26, 1994, and discharged on November 29, 1994.

   
   

10. Shanda was arrested and charged with the crime of aggravated child abuse. In March, 1996, the state prosecutor nol prossed and dismissed all criminal charges against Shanda.

    
    

11. Shanda claimed that Jordan sustained her injuries when Jordan fell from the sofa. There is a coffee table and several other hard objects near the sofa. The floor under the sofa is concrete.

12. Respondents removed Shanda from their home on November 26, 1994. The state instituted a dependency proceeding. Shanda did not return to Respondents' home until sometime in April, 1995, after the dependency proceeding was concluded.

    
    

13. An agent for Petitioner advised Respondents after the dependency proceeding that it would be okay for Shanda to return home. Respondents allowed Shanda to return home only upon the approval of Petitioner's agent. Respondents never intended to permit Shanda to return home without Petitioner's approval.

    
    

14. Sometime after November 26, 1994, Ms. Juanita Warren, a foster care representative for Petitioner, learned of Jordan's injuries. Through Ms. Warren, Petitioner requested that Respondents voluntarily surrender their license. Respondents refused.

    
    

15. Respondents' license automatically expired, and Respondents applied for a renewal license. The renewal license was granted in accordance with applicable law because Petitioner did not grant or deny the application within

    90 days of the date Petitioner received the application.

    
    

16. On September 28, 1995, Petitioner advised Respondents that their license to provide foster home care for dependent children was being revoked. In relevant part, the letter stated:

    
    

    This is based on the fact that your daughter, Shanda Toney, who resides in your home, has been arrested and charged with aggravated child abuse. The injuries to the child involves (sic) a possible skull fracture, a black eye, numerous bruises and bite marks.

    This incident occurred while foster children resided in your home. Your decision to allow your daughter to care for children and to continue to reside in your home, as a per- manent member of the household, after the incident indicates a failure to effectively supervise and safeguard the home for children.

    
    

17. At the formal hearing, Petitioner deleted the underlined portion of the quoted letter as a basis for the proposed revocation. The only basis for the alleged failure to effectively supervise and safeguard the home for children is the allegation that Respondents decided to allow their daughter to continue to reside in their home as a permanent resident.

    
    

18. Respondents did not decide to allow their daughter to continue to reside in their home. They removed their daughter from their home on November 26, 1994. Respondents allowed Shanda to return in April, 1995, only because Petitioner's agent advised them it would be okay to do so.

    
    

19. Respondents never intended to allow Shanda to reside in their home as a permanent resident after the incident on November 26, 1994. Respondents are willing to remove Shanda from their home to maintain their license to operate a foster care home for dependent children.

    
    

20. Shanda is 21 years old and has other places to live. Leaving the home would impose no hardship on Shanda.

21. Respondents have cared for other dependent children without incident. They have adopted one dependent child with multiple disabilities and cared for the child without incident.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. The parties were duly noticed for the formal hearing.

    
    

23. The letter notifying Respondents of the revocation of their license to operate a foster home for dependent children is the only notice of charges against Respondents (the "notice of charges"). The letter notifies Respondents that the basis for revoking their license is: the arrest and criminal charges against their daughter; the injuries to the child; the occurrence of the injuries while foster children resided in Respondents' home; and Respondents' decision to allow their daughter to continue to reside as a permanent member of the household.

    
    

24. Respondents do not dispute the allegation that Jordan suffered injuries. Respondents do not dispute the allegation that Shanda was arrested and charged with aggravated child abuse but dispute the sufficiency of that allegation as a grounds for revocation. Respondents dispute the remaining allegations in the notice of charges against them.

    
    

25. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondents failed to effectively supervise and safeguard their home for children for the reasons stated in the notice of charges. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

26. Petitioner satisfied its burden of proof that the injuries to Jordan were sustained in Respondents' home. Jordan's mother testified that Jordan had no injuries when she delivered Jordan into Respondents' care.

    
    

27. The testimony of Jordan's mother was credible and persuasive. It was explained and supplemented, within the meaning of Section 120.58(1)(a), Florida Statutes, 1/ by admissions attributed to Shanda. Shanda undertook the care of Jordan as an agent for Respondents.

    
    

28. Petitioner neither alleged nor proved by clear and convincing evidence that Respondents' daughter in fact committed the acts with which she was charged criminally. A criminal charge is not synonymous with a criminal conviction.

    
    

29. Although circumstances suggest the injuries to Jordan may have been inflicted by Shanda, the evidence is less than clear and convincing. There is no rule of evidence in this proceeding, such as the so-called "but for" rule in tort law, which forms a basis for a finding that the injuries to Jordan could not have been caused but for the negligent or intentional acts of Shanda.

    
    

30. Even though Respondents' daughter was not proven guilty in either a criminal proceeding or an administrative proceeding, Respondents removed their daughter from their home on the day of the incident. They did not allow their daughter to return for approximately five months and, then, only after her return was approved by Petitioner's agent.

31. Respondent, Patricia Toney, testified that she never intended to allow her daughter to reside in the Toney home without the approval of Petitioner.

Her testimony was credible and persuasive. Contrary evidence presented by Petitioner was less than clear and convincing.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondents not

guilty of failure to effectively supervise and safeguard their foster home for children and continuing Respondents' license to operate a foster care home for dependent children. It is further recommended that the Final Order shall require Respondents' to remove their daughter from their home as a condition of licensure, and shall impose such other conditions as may be reasonably required to assure that Respondents are complying with the condition of licensure.

RECOMMENDED this 25th day of June, 1996, in Tallahassee, Florida.

DANIEL S. MANRY, 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 25th day of June, 1996.

ENDNOTE

1/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5627

Petitioner's Proposed Findings Of Fact. 1.-17. Accepted in substance

1. Rejected as irrelevant and immaterial

2. Accepted in substance

3. Rejected as recited testimony

4. Rejected as irrelevant and immaterial (the only basis upon which Respondent, Patricia Toney, is charged with the failure to effectively supervise and safeguard the home for children is her alleged decision to allow her daughter to remain as a permanent resident of the home)

22.-24. Rejected as recited testimony

Respondents' Proposed Findings Of Fact.

1.-2. Accepted in substance

3. Rejected as inconsistent with credible and persuasive evidence

4.-8. Accepted in substance

COPIES FURNISHED:

Richard Doran General Counsel

Department of Health and Rehabilitative Services

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

Building 7, Suite 728

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Laurie A. Lashomb, Esquire Department of Health and

Rehabilitative Services District Seven Legal Office

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

Gregory H. Hammel, Esquire 932 Wickham Road

West Melbourne, Florida 32904

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: 95-005627

Orders for Case No: 95-005627