STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0943

)

JAMES AND MARY COMER, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was provided and on June 4, 1996, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Gainesville, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Lucy Goddard, Esquire

Department of Health and Rehabilitative Services

1000 Northeast 16th Avenue, Box 3

Gainesville, Florida 32601

For Respondent: James and Mary Comer, Pro Se

Post Office Box 722 Micanopy, Florida 32667

STATEMENT OF THE ISSUES

Are the Respondents entitled to renew their license to operate a family foster home?

PRELIMINARY STATEMENT

On February 5, 1996, Petitioner notified Respondents that it intended to revoke their foster home license for alleged violations of Rule 10M-6.019, Florida Administrative Code, and Section 409.175, Florida Statutes. On February 12, 1996, Respondents availed themselves of the opportunity to contest the proposed revocation by requesting a formal hearing.

Before the hearing was conducted on June 4, 1996, Respondents' current foster home license expired. Therefore, the case became one in which Petitioner had denied the request for license renewal on grounds set forth in the February 5, 1996 correspondence.

At hearing Petitioner presented the testimony of Dr. Wan Ahmad; V.K., a minor child, Roberta Graham, Deborah Gipple, Pamela Davis, Judy Parks, Brenda

Mims, Mary Comer, and a video tape statement of F.J., a minor child. Petitioner's Exhibits 1-4 and 6-8 were admitted. Ruling was reserved on the admission of Petitioner's Exhibits 5 and 9. Their admission will be discussed. Respondents testified in their on behalf. Respondents did not present exhibits.

Petitioner's Exhibit No. 5 is admitted as constituting a reminder to Respondents that they should not employ corporal punishment in disciplining foster children in their care and as a memorialization of meetings held between Petitioner's employees and the Respondents. It is not admitted to establish as true the fact that Respondents had used corporal punishment in the past before Petitioner's Exhibit 5 was prepared. See Section 90.803(8), Florida Statutes.

In accordance with Section 120.58, Florida Statutes, Exhibit 9 is admissable as hearsay. In accordance with Section 90.803(23), Florida Statutes, it is admissable, together with oral statements by F.J., as exceptions to the use of hearsay.

The video tape statement and the oral statements by F.J. to Graham, Gipple, and Mims, meet the exception to hearsay contemplated by Section 90.803(23), Florida Statutes, and as discussed in State v. Townsend, 635, So.2d, 949 (Fla.

1994), for reason that:

1. F.J., according to the testimony of Dr. Ahmad, was shown to have an

   I.Q. in the range of 46 to 58 which extrapolates to a child whose mental age is below eleven years.

   
   

2. In the video tape, made on June 3, 1996, F.J. is the source of information imparted concerning acts by James Comer which constitutes child abuse, sexual abuse, and other offences involving an unlawful sexual act, and contact with and by the child and on the child. These same acts by James Comer existed in relation to oral statements made to Graham, Gipple, and Mims. The statements in the video and made orally, when considering the totality of circumstances, to include F.J.'s age of thirteen; the nature of the conduct by James Comer involving touching of the child's breast and genital area and having the child touch his genital area; the duration of the abuse involving more than one incident; the fact that F.J. was the foster child of James Comer; the method by which F.J. reported the acts of abuse by use of language consistent with her age and mental status and by physically pointing out the areas on her person upon which James Comer performed the acts of abuse; and the manner in which F.

   J. remained consistent in describing those acts on the video and to others; taking into account F.J.'s appreciation that she needed to tell the truth about James Comer's acts of abuse and sexual misconduct; there being no apparent motivation for F.J. to fabricate her accusation concerning F.J.'s conduct; the length of time that F.J. had lived with James Comer, six and one-half years; the inability for F.J. to predict the ultimate results of the report of child abuse and sexual abuse, establish clear safeguards of reliability concerning her reports of child abuse and sexual abuse and other sexual misconduct. F.J. has also reported the concerns that her sister, V.K., not be subjected to inappropriate conduct by James Comer.

   
   

3. The Nature and manner of reporting her remarks by video tape indicate trustworthiness. The manner in which Mims, Graham, and Gipple reported the statements made to them by F.J. do not establish that those individuals would fabricate the reported remarks. The statements are consistent in each instance where F.J. has reported. Mims recorded the statements given to her by F.J. at or around the time the statements were made. Mims' recording was consistent with her preparation of case notes. Graham, Gipple and Mims were acting in

   their professional capacities when receiving F.J.'s remarks, as persons involved with the welfare of foster children and without bias toward the Comers. Thus vouching for their reliability as sources of F.J.'s remarks.

   
   

4. F.J. was unavailable to testify at hearing based upon a substantial likelihood of severe emotional or mental harm to her if called upon to testify at hearing. The basis for her unavailability was as established through the witness, Gipple, a licensed mental health counselor who offered her professional opinion concerning that issue. Graham and Mims also testified concerning the consequences of having F.J. testify at hearing. Their remarks revealed that the requirement to testify would cause a regression in F.J.'s conduct which has improved following her accusation concerning James Comer's conduct directed to F.J.. If required to testify, F.J. would be left with the feeling that she was not in control of her life and could not trust other people. Regression would be in a setting in which her developmental level is already comprised separate and apart from the incidents with James Comer.

   
   

5. F.J.'s statements are corroborated by testimony from V.K., wherein

   1. observed contact between James Comer and F.J. which V.K. described as "nasty stuff". In addition, the witness Gipple has observed F.J. acting in a manner consistent with a child who has been sexually abused. According to Gipple, F.J. has exposed herself, rubbed against other children, has problems in class and at home following directions, and has been distrustful by sneaking around in an attempt to avoid detection in activities which could stand detection, for example, taking food without others knowing that she did.

      
      

      Following the hearing, the parties were provided the opportunity to submit proposed recommended orders. Petitioner submitted a proposed recommended order. Respondents did not. The fact finding set forth in Petitioner's Proposed Recommended Order is discussed in an Appendix to the Recommended Order.

      
      

      FINDINGS OF FACT

      
      

      1. Respondents held Family Foster Home License No. 059520, effective from May 18, 1995 through May 18, 1996. The license was not renewed based upon allegations in this case.

         
         

      2. At times relevant, Respondents provided foster care to F.J., who was thirteen when the hearing was conducted, to V.K. who was eight when the hearing was conducted, and to F.J. and V.K.'s two younger brothers. The children lived with the Respondents for approximately six and one-half years.

         
         

      3. Although F.J. is thirteen years old, she is a developmentally disabled child with an I.Q. in the range of 46 to 58. Her mental and developmental age is less than eleven years.

         
         

      4. On May 30, 1995 an investigation was begun concerning alleged sexual abuse of F.J. by James Comer. This led to the removal of the children from Respondents' home.

         
         

      5. On May 30, 1995 F.J. described James Comer's sexual misconduct to Brenda Mims, a human services counsellor for Petitioner. At that time F.J. told Mims that James Comer had touched her breast and felt on her. When F.J. described the contact which James Comer had with her, F.J. put her hands on her breast to demonstrate. She did not describe the point in time when this happened.

      6. On that date Mims interviewed Mary Comer concerning the allegations by F.J.. Mary Comer confirmed that F.J. had told Mary Comer that James Comer was "bothering her" and F.J. wanted it to stop. Mary Comer indicated that she thought that F.J. was referring to a "tickling incident". Mary Comer told Mims that she had confronted James Comer about the tickling and asked him to stop tickling F.J.. When Mary Comer spoke to Mims, she referred to F.J. coming to her and saying that "Dada" was bothering F.J.. The term "Dada" is the name the children used to refer to James Comer. The children referred to Mary Comer as "Granny".

         
         

      7. On June 7, 1995 Mims talked to F.J. again. At that time F.J. was concerned that James Comer not be able to find her in her new home. Assurances were given that James Comer could not find her. On this occasion F.J. told Mims that James Comer "would feel on her" and she didn't like it. In this conversation F.J. described fondling James Comer's penis. F.J. stated that James Comer would hit her with his fist sometimes if F.J. wouldn't cooperate with his advances. F.J. described a big roll of money that James Comer would give her if F.J. would cooperate with him. Otherwise James Comer would not give

         F.J. money. According to Mims, F.J. said that James Comer would give her money if F.J. would "be with him".

         
         

      8. In the June 7, 1995 discussion F.J. and V.K. told Mims that Mary Comer tried to prohibit James Comer from bothering F.J. and James Comer began to beat Mary Comer. Following such incident, the police were called, but James Comer was not removed from the home.

         
         

      9. In the June 7, 1995 conversation V.K. told Mims that on one occasion

         V.K. peeked out the door and saw F.J. lying on James Comer while he was seated in the reclining chair.

         
         

      10. Deborah Gipple is a licensed mental health counselor who has experience in counseling child victims of sexual abuse or other trauma. Gipple began counseling F.J. in November, 1995 and continued the counseling to the date of hearing.

          
          

      11. Gipple observed in F.J. conduct which is consistent with a child who has been sexually abused. This included F.J. exposing herself, rubbing against other children, problems in the classroom and at home concerning the need to follow directions, and a distrust evidenced by sneaking about doing things that were not necessary to avoid detection, such as sneaking about and removing food.

          
          

      12. F.J. told Gipple that James Comer touched between F.J.'s legs and touched her breast. F.J. further stated that James Comer had her lay on top of him. F.J. told Gipple that sometimes James Comer would come in the night and take F.J. from her bed. In these conversations Gipple observed that F.J. was aware that James Comer's actions were wrong. In these discussions F.J. stated a concern about her sister V.K. and the possibility that James Comer would harm V.K..

          
          

      13. V.K. was competent to testify when she testified at hearing. On one occasion when V.K. was in the hallway with her brothers at night she looked in the T.V. room and saw F.J. on top of James Comer while he was seated in a reclining chair. V.K. described that F.J. was moving her body and doing "nasty stuff".

          
          

      14. On another occasion V.K. was outside the house and observed F.J. and James Comer in the T.V. room. As V.K. describes it, F.J. was playing with James

          Comer while he was sitting down. F.J. was on James Comer's lap. V.K. did not give exact details concerning what F.J. and James Comer were doing.

          
          

      15. Concerning these two instances, V.K. recalls that Mary Comer was not home on the first occasion. V.K. has no recollection concerning Mary Comer's whereabouts on the second occasion.

          
          

      16. V.K. had been subjected to corporal punishment by James Comer when living in his home. She also observed James Comer administer corporal punishment to her two brothers.

          
          

      17. In the June 3, 1996 video that was made to record F.J.'s remarks concerning James Comer, together with statements she made to others, F.J. demonstrates sufficient appreciation of the meaning of the duty and responsibility to tell the truth to warrant a finding that she was competent for that purpose. In the video she describes that James Comer made her touch his "private parts". She did not describe the period of time over which the sexual contacts were made between James Comer and F.J. She did recount how these events had occurred on a number of occasions. On one occasion her clothes were off when James Comer touched her. In the video tape F.J. describes that James Comer had touched her breast and genital area by pointing to those areas on her body. F.J. identified that the occasions when she was inappropriately touched occurred when Mary Comer was not at home. In the video F.J. refers to the fact that she told Mary Comer about being touched by James Comer, but that Mary Comer did not believe her.

          
          

      18. By October 1995 F.J., V.K. and their brothers had been placed in the foster home of Roberta Graham where they presently reside.

          
          

      19. While living with Graham, F.J. told Graham that "Dada", referring to James Comer, was touching F.J. in wrong places, that he touched her on her breasts, and that he took her hand and massaged his "private part", referring to his penis. F.J. told Graham that this happened when Mary Comer went out to get drinks. F.J. told Graham that the other children were outside playing and the door was locked and James Comer and F.J. were inside when events occurred. F.J. mentioned to Graham that an incident happened at night when everyone was in bed and "Dada" called F.J. out alone and then the other children, her brothers and

          V.K. came out of the room. This is the night time incident V.K. testified about. This incident at night occurred when Mary Comer was not at home. F.J. told Graham that on one occasion James Comer removed F.J.'s clothes when she came out of the bathroom after blocking the door to prohibit F.J.'s exit. F.J. expressed concern to Graham that "Dada" was going to turn from doing things to

          F.J. to doing things to V.K.. F.J. told Graham that she had reported James Comer's actions to Mary Comer in saying that she told "Granny". F.J. stated to Graham that when F. J. told Mary Comer, she, (Mary Comer) said, "If you tell anyone, you will have to leave". F.J. made the remarks about James Comer's inappropriate conduct approximately thirty times to Graham and was consistent about the facts reported.

          
          

      20. The remarks by F.J. on the video tape and to Mims, Gipple and Graham which have been recited concerning James Comer are credited as true.

          
          

      21. Following the accusations about James Comer's sexual misconduct directed to F.J., Petitioner through its employees, Esther Tibbs and Judy Parks, met the Respondents on February 5, 1996 to advise Respondents that Petitioner intended to revoke the foster care license. The grounds for seeking revocation

          were related to the sexual misconduct by James Comer and the use of corporal punishment in disciplining the foster children.

          
          

      22. In the past, commencing 1988, Petitioner had received complaints concerning the use of corporal punishment by Respondents in disciplining their foster care children. Petitioner through its employees had counseled Respondents about the inappropriateness of corporal punishment. In one instance correspondence was sent to the Respondents on this subject reminding the Respondents that it was inappropriate to use corporal punishment even to the extent of an "occasional slap on the backside. . .under any circumstances".

          This reminder was sent through correspondence dated March 25, 1993.

          
          

      23. In 1988, unrelated to the foster children who have been referred to in these facts, Pamela Davis, Guardian Ad Litem for A.L. spoke to James Comer concerning his administration of corporal punishment to that child. James Comer told Davis that he had beaten the child "to beat the devil out of her" and it hadn't worked. He further stated that Davis could take the child from his home. Davis did remove the child from foster care provided by Respondents.

          
          

      24. On February 12, 1996 Respondents requested a formal administrative hearing to contest the grounds for revoking their foster home license.

          
          

          CONCLUSIONS OF LAW

          
          

      25. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this case in accordance with Section 120.57(1), Florida Statutes.

          
          

      26. Petitioner bears the burden to establish grounds to exercise its discretion to not renew the foster home license. The proof must be by clear and convincing evidence.

          
          

      27. In accordance with Section 409.175(5)(h) and (i), Florida Statutes, Respondents' foster home license expired on May 18, 1996, causing the Respondents to have to reapply and be considered for relicensure consistent with the requirements in Section 409.175, Florida Statutes, and rules promulgated consistent with that section. Based upon that section consideration as a license renewal became necessary when the February 5, 1996 notice that Petitioner intended to revoke the license was made moot by the license expiration for the period May 18, 1995 through May 18, 1996.

          
          

      28. Grounds for denying or revoking a foster home license are set forth in Section 409.175(8)(a) and (b)1. and 2, Florida Statutes, as it pertains to this case, wherein it is stated:

   
   

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

   (b) 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.

1. Rule 10M-6.024(1)(b)5.f, Florida Administrative Code, prohibits foster care parents from using corporal punishment of any kind in disciplining foster children. This rule has been promulgated in accordance with Section 409.175(8)(b)2, Florida Statutes.

   
   

2. James Comer through intentional acts of physical abuse and sexual abuse has materially affected the health and safety of F.J. through direct misconduct while she was a child in his home, by touching her breast and genital areas and having her touch his genital area in violation of Section 409.175(8)(b)1, Florida Statutes. Likewise James Comer has violated Section 409.175(8)(b)2, Florida Statutes, by violating Rule 10M-6.024(1)(b)5.f, Florida Administrative Code, by using corporal punishment against the children as a means of discipline while in his home.

RECOMMENDATION

Based on the facts found and the conclusions of law reached, it is, RECOMMENDED: that a Final Order be entered which denies the renewal of the

Family Foster Home License for Respondents.

DONE and ENTERED this 5th day of July, 1996, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 5th day of July, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0943

The following discussion is given concerning proposed facts by the Petitioner: Paragraphs 1-5 are subordinate to facts found.

Paragraph 6 is not necessary to the resolution of the dispute.

Paragraphs 7 & 8 are subordinate to facts found with the exception that the fourth sentence is not supported by competent evidence in the record, nor are paragraphs 9 and 10.

Paragraph 11 is subordinate to facts found.

Paragraph 12 in the first sentence is subordinate to facts found. The last sentence to paragraph 12 and paragraph 13 are not necessary to the resolution of the dispute.

Paragraph 14 is discussed in the evidentiary ruling under Section 90.803(23), Florida Statutes.

Paragraph 15 is subordinate to facts found with exception that the next to last sentence in the reference that on the second occasion "Granny" had gone somewhere is not supported by competent evidence in the record.

Paragraphs 16-18 are subordinate to facts found.

Paragraph 19 is not supported by competent evidence in the record.

Paragraphs 20 and 21 are subordinate to facts found with the exception that the reference to "they" in paragraph 21 should be "she".

The first and the third sentence to paragraph 22 are not supported by the record. The second sentence is subordinate to facts found.

Paragraph 23 is not supported by the record.

Paragraphs 24 and 25 with the exception of the last phrase to paragraph 25 are subordinate to facts found. The last phrase to paragraph 25 is not supported by the record.

Paragraph 26 is subordinate to facts found with the exception of the reference to October 10, 1988, which is not supported by competent evidence in the record.

Paragraphs 27-29 are not necessary to the resolution of the dispute.

Paragraph 30 is subordinate to facts found with the exception of the reference to November 26, 1995 which is not supported by evidence in the record.

Paragraph 31 is not necessary to the resolution of the dispute. The second paragraph 29 is subordinate to facts found.

COPIES FURNISHED:

Lucy Goddard, Esquire Department of Health and

Rehabilitative Services

1000 Northeast 16th Avenue, Box 3

Gainesville, Florida 32601

James and Mary Comer, pro se Post Office Box 722 Micanopy, Florida 32667

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 2, Suite 204X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran General Counsel

Department of Health and Rehabilitative Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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

JAMES AND MARY COMER

Petitioners,

vs. CASE NO. 96-0943

RENDITION NO. HRS-96-382-FOF-OLC

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

Respondent.

/

FINAL ORDER

THIS CAUSE is before me for entry of a Final Order.

Although the Division of Administrative Hearings has denominated the department as petitioner, James and Mary Comer filed the license application that is the subject of this proceeding, and are, therefore, the petitioners. All pleadings and papers are hereby amended to reflect the appropriate style of this cause.

The Recommended Order concludes that the department did not err in denying petitioners' application to renew their foster home license pursuant to section 409.175, Florida Statutes. The hearing officer concluded that there was clear and convincing evidence to support the department's determination that "James Comer through intentional acts of physical abuse and sexual abuse has materially affected the health and safety of [a foster child]."

The department approves and adopts the Recommended Order except for paragraph 26, which concludes that the department could deny petitioners' application for a renewal of their foster home license only if clear and convincing evidence supported the denial. Foster home licenses are not occupational or professional licenses. See Ch. 96-402 s 6, Laws of Fla. Heightened procedural and evidentiary standards apply in professional licensing cases because significant property interests of the licensee are implicated.

See Department of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern and Co., 670 So.2d 932 (Fla. 1996) . Conversely, a foster home licensee does not have a property interest in the license. Ch. 96-

402 s 6, Laws of Fla. Foster homes are licensed, not to protect the general public from the actions of unqualified professional parents, but rather as a means of protecting the children to be placed in foster care. See s 409.175, Fla. Stat. (1995); Department of Health and Rehabilitative Services v. Ntl. Adoption Counseling Serv., Inc., 498 So.2d 888 (Fla. 1985)(BOYD, J. Dissenting) Foster parents receive reimbursement for the expenses of caring for foster children, but not compensation for their parenting services. Lacking a property

interest, there is no basis for application of the procedures described in Osborne and prior cases relating to agency action against a professional license or licensee.

Assuming, arguendo, the applicability of professional and occupational licensing evidentiary standards, the department still would not in this case be required to meet that burden. The Florida Supreme Court, in Department of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern and Co., 60 So.2d 932 (Fla. 1996), held that an applicant for a license bears the ultimate burden of demonstrating fitness, and that an agency denying a license application need not demonstrate unfitness by clear and convincing evidence. The department may appropriately be assigned the burden of producing evidence to establish the specific bases on which the license denial is grounded, but that evidence need not be "clear and convincing." Id.

Accordingly, it is ORDERED that petitioners' application for renewal of their foster home license be and hereby is DENIED.

DONE and ORDERED this 4th day of December, 1996, in Tallahassee, Leon County, Florida.

EDWARD A. FEAVER, Secretary Department of Health and

Rehabilitative Services

By: SAMARA NAVARRO, D.B.A.

Deputy Secretary

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:

Charles C. Adams, Hearing Officer Division of Administrative Hearing 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Lucy Goddard, Esquire District 3 Legal Office Department of Health and

Rehabilitative Services 1000 Northeast l6ht Avenue Box 3

Gainesville, Florida 32667

James and Mary Comer Post Office Box 722 Micanopy, Florida 32667

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Maior hand deliver to each of the above-named persons this 5th, day of December, 1996.

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

(904) 488-2381

Docket for Case No: 96-000943

Orders for Case No: 96-000943