STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5983

)

MILDRED SANDS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 28, 1996, in Miami, Florida, before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Colleen Farnsworth

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128

For Respondent: Mildred Sands, Pro Se

2971 Northwest 164th Street Opa Locka, Florida 33054

STATEMENT OF THE ISSUE

The issue for determination at final hearing is whether Respondent's foster care license should be revoked.

PRELIMINARY STATEMENT

By letter dated September 13, 1995, the Department of Health and Rehabilitative Services (Petitioner) notified Mildred Sands (Respondent) that her foster care license was being revoked because of her alleged use of excessive corporal punishment on a foster child in her home. By letter dated October 9, 1995, Respondent requested a formal hearing.

On December 7, 1995, this matter was referred to the Division of Administrative Hearings. A hearing was scheduled pursuant to written notice.

At hearing, Petitioner presented the testimony of five witnesses and entered five exhibits into evidence. Respondent testified on her own behalf, presented the testimony of two witnesses and entered no exhibits into evidence.

A transcript of the 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. Petitioner submitted proposed findings of fact which are addressed in the appendix to this recommended order. Respondent did not submit proposed findings of fact.

FINDINGS OF FACT

1. On July 1, 1995, Mildred Sands (Respondent) was issued a provisional foster home license by the Department of Health and Rehabilitative Services (Petitioner), with an effective period of July 1, 1995 - June 30, 1996. Her license number is 0795-06-3.

   
   

2. A provisional license is issued when all requirements for a license are not met and the licensee is given a specific time period to comply with the remaining requirements. Due to a court action involving a minor child, J. F., who was born on May 7, 1983, the court placed J. F. with Respondent. In order for the minor child to live with Respondent, Petitioner issued Respondent a provisional license.

   
   

3. Prior to the placement, Respondent knew J. F.'s mother for several years on a personal basis. The mother and her children were at one time living with Respondent. Respondent is J. F.'s godmother and has interacted with her since J. F.'s birth.

   
   

4. Prior to licensing, on June 12, 1995, Respondent signed a "Bilateral Service Agreement" (Bilateral Agreement) with Petitioner, agreeing to abide by or with several conditions. The Bilateral Agreement provides in pertinent part:

   
   

   2. We are fully and directly responsible

   to the Department for the care of the child.

   * * *

   8. We will accept dependent children into our home for care only from the Department and will

   make no plans for boarding other children or adults. We will notify the Department if any adult relative or family members returns to live in the home.

   * * *

   10. We will notify the Department immediately of any change in our address, employment, living arrangements, arrest record, health status or family composition, as well as any special needs for the child (i.e. health, school problems, emotional problems).

   * * *

   16. We will comply with all requirements for a licensed foster home as prescribed by the Department.

   * * *

   18. We understand that any breach of the Agreement may result in the immediate removal of the child(ren) and revocation of the license.

   
   

5. Respondent signed a "Discipline Policy Agreement" (Discipline Agreement) on July 19, 1993, when she was initially licensed as a foster care provider and on June 12, 1995, during her re-licensure process. The Discipline Agreement signed on July 19, 1993, provides in pertinent part:

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

   * * *

   1. Hitting a child with an object.

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

      The Discipline Agreement signed on June 12, 1995, provides in pertinent part:

      [T]he following disciplinary practices are FORBIDDEN on our children. FAILURE OF THE FOSTER PARENT(S)... TO COMPLY MAY RESULT IN THE REMOVAL OF THE CHILD(REN) FOR AN INVESTIGATION AND RESULT IN THE CLOSURE OF YOUR HOME.

      * * *

      1. Hitting a child with ANY object.

      2. Slapping, smacking, whipping, washing mouth out with soap, or ANY other form of physical discipline.

      
      

6. On February 14, 1995, Petitioner waived placement requirements in order for J. F.'s siblings to be placed with Respondent to keep the family unit together. J. F.'s siblings had been living with her grandmother who had become ill and was unable to care for the children.

   
   

7. On September 1, 1995, Petitioner received a report of alleged child abuse allegedly committed by Respondent against J. F., who was 12 years old, at Respondent's foster home. Respondent was allegedly disciplining J. F. Within a short span of time that same day, Petitioner began an investigation.

   
   

8. The minor child, J. F., had raised bruises, swelling, abrasions, and redness on the lower part of her legs. Also, J. F. had a small scratch on one of her legs and a scratch on her left arm.

   
   

9. The injuries were purportedly inflicted by a ruler. No expert opinion was presented to confirm that the injuries were consistent with such an instrument, and no attempt was made to obtain the instrument used to commit the alleged abuse.

   
   

10. Petitioner removed all the children from Respondent's home.

    
    

11. Petitioner notified Respondent that it was revoking her foster home license due to the alleged excessive corporal punishment.

    
    

12. The minor child, J. F., did not testify at the hearing. 1/

    
    

13. Respondent did not inflict the injuries to the minor child, J. F. 2/ Respondent did not use corporal punishment of any kind on the minor child, J. F.

    
    

14. Respondent did not violate the Discipline Agreement.

    
    

15. Respondent was responsible for the supervision and care of the minor child, J. F.

16. Respondent was not aware of J. F.'s injuries and was, therefore, unable to notify Petitioner of the injuries or to obtain medical attention for

    J. F.'s injuries.

    
    

17. Respondent had allowed the children's adult sibling, who was 19 years old, to live with her and the children. Respondent failed to notify Petitioner that the adult sister would be and was living in her home. In failing to notify Petitioner, Respondent violated the Bilateral Agreement, paragraph numbered 8.

    
    

    CONCLUSIONS OF LAW

    
    

18. 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.

    
    

19. License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish the truthfulness of the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

20. Subsection 409.175(1), Florida Statutes, provides in pertinent part:

    
    

    (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.

    
    

21. Rule 10M-6, Florida Administrative Code, sets forth the minimum standards by which foster parents must be evaluated.

22. Rule 10M-6.012 provides in pertinent part: Section 409.175, F.S., mandates that the depart-

    ment 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.

    
    

23. Rule 10M-6.024(4) provides in pertinent part:

    
    

    (g) The substitute care parents must notify the department regarding changes which affect the life and circumstances of the shelter or foster family.

    
    

24. Rule 10M-6.024(1)(b)5a,c, and f provides minimum standards for disciplining a minor child placed in a foster home. The minimum standards prohibit the use of corporal punishment of any kind.

25. Petitioner failed to demonstrate that Respondent inflicted the injuries upon the minor child, J. F. As a result, Petitioner failed to demonstrate that Respondent violated the minimum standards prohibiting the use of corporal punishment of any kind.

    
    

26. Even though injuries were inflicted upon J. F., no determination has been made in this case as to whether the injuries constitute abuse. The issue of abuse was not before this Hearing Officer.

    
    

27. Petitioner has demonstrated that Respondent violated the Bilateral Agreement, paragraph numbered 8 by failing to notify Petitioner that J. F.'s adult sister would be living in the foster home. Consequently, Petitioner has demonstrated that Respondent violated the minimum standard of Rule 10M- 6.024(4)(g). However, Respondent's failure to notify Petitioner of a change in the living arrangements was not provided as a reason for revoking Respondent's foster home license and cannot, therefore, form the basis for license revocation. See, MacMillian v. Nassau County School Board, 629 So.2d 226 (Fla. 1st DCA 1993), Kinney v. Department of State, 501 So.2d 129 (Fla. 1st DCA 1987), and Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the foster home license of Mildred Sands not be revoked.

DONE AND ENTERED this 1st day of August 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 1st day of August, 1996.

ENDNOTES

1/ Petitioner's investigative report was entered into evidence. The report contains statements of third parties, including the victim. Being statements of third parties, the statements are hearsay and not subject to an exception to the hearsay rule, including Subsection 90.803(8), Florida Statutes, since such statements are not "matters observed" by the investigaor, but rather, the observations of third parties. Furthermore, Petitioner did not attempt to have the victim's out-of-court statements to Petitioner's investigator declared exceptions to the hearsay rule under Subsection 90.803(23), Florida Statutes.

2/ Ibid.

APPENDIX

The following rulings are made on Petitioner's proposed findings of fact:

1. Partially accepted in findings of fact 1 and 2.

2. Partially accepted in finding of fact 2.

3. Partially accepted in finding of fact 4.

4. Partially accepted in finding of fact 5.

5. Partially accepted in finding of fact 5.

6. Partially accepted in finding of fact 7.

7. Partially accepted in finding of fact 16.

8. Partially accepted in findings of fact 8 and 9.

9. Partially accepted in finding of fact 15.

10. Partially accepted in finding of fact 16.

11. Partially accepted in finding of fact 16.

12. Partially accepted in finding of fact 17.

13. Partially accepted in finding of fact 17.

14. Partially accepted in finding of fact 17.

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

COPIES FURNISHED:

Colleen Farnsworth

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

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

Ms. Mildred Sands 2971 NW 164th Street

Opa Locka, Florida 33054

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Building 7, Suite 728

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: 95-005983

Orders for Case No: 95-005983