STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA AND ROBERT PATTERSON, )

)

Petitioners, )

)

vs. ) CASE NO. 96-1567

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings (Division), held a formal hearing in this matter on July 10, 1996, in Lakeland, Florida.

APPEARANCES

For Petitioners: Linda Patterson, Pro se

Robert Patterson, Pro se 8653 Indian Ridge Way Lakeland, Florida 33809

For Respondent: M. Elizabeth Wall, Esquire

Department of Health and Rehabilitative Services

200 North Kentucky Avenue, Box 19 Lakeland, Florida 33801

STATEMENT OF THE ISSUES

Should Petitioners' application for family foster home license be granted?

PRELIMINARY STATEMENT

Robert and Linda Patterson made application to the Department of Health and Rehabilitative Services (Department) for a license to provide family foster home care for dependent children. After the Pattersons had completed the initial training for prospective foster parents and the Department had completed the home study, including a review of the Pattersons background, the Department, by letter dated August 24, 1995, notified the Patterson that their application for licensure as a family foster home had been denied. By letter dated August 28, 1995, the Patterson requested a formal hearing on their denial. By a Notice dated March 28, 1996, the Department referred the matter to the Division for the assignment of a Hearing Officer and the conduct of a formal hearing.

At the hearing, Robert Patterson testified on behalf of the Petitioners.

The Department presented the testimony of Linda Patterson and Ann Hipson. There was no documentary evidence received.

There was no transcript of this proceeding filed with the Division. An unopposed Motion for Extension of Time to Prepare the Agency's Proposed Recommended Order was granted with the understanding with the understanding that any time constraint imposed under Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code.

The Department timely filed its Proposed Recommended Order under the extended time-frame. The Petitioners have elected not to file any proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the Department has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made:

1. The Department is the agency in the State of Florida responsible for the licensure of family foster homes.

   
   

2. Linda Patterson and Robert Patterson (Pattersons), a married couple, applied for licensure as a family foster home.

   
   

3. The Pattersons completed the initial training for prospective foster parents in March of 1995.

   
   

4. The Department completed a home study on the Pattersons. The results of the home study and background information on the Pattersons, including the Pattersons tenure as foster parents in Connecticut, were considered by the Department before denying the Pattersons' application for licensure as a family foster home for children.

   
   

5. On August 24, 1994, the Department issued Notice Of Denial to the Patterson which in pertinent part provides:

   
   

   This letter provides notice to you that your application for a family foster home license is denied, based on Section 409.175(8)(a), Florida Statutes, and Rule 10M-6.023, Florida Administrative Code (FAC).

   
   

   The reasons for this denial are:

   1. Mr. Patterson has been charged with numerous law violations in the past. Although none of the law violations auto- matically disqualifies him from fostering, they do reflect a lack of judgment needed

      to provide adequate care for foster children, indicating an inability to comply with Rule 10-6.023(e).

   2. Your home was investigated in August of 1992 because of allegations of sexual abuse on your 18 year old adopted daughter. You admitted inappropriate contact with this child. As a result of this investigation your license was limited, and your home was approved only for males, ages 5 to 11.

   3. In April of 1993, your marital coun- selor stated that you have difficulty setting limits with sexuality, and recommended against the placement of any child with a known history of sexual acting out, or approaching puberty. This recommendation was made shortly after an incident of child on child sexual abuse in your home.

   4. In September of 1993, a clinical psychologist evaluated you. He stated that Mr. Patterson's ability to control his impulses is "probably" satisfactory, but should not be tested with sexually active adolescent females. He also opined that your family might have some difficulty dealing with sexually abused and acting out children without professional guidance.

      All of these incidents indicate an

      inability to comply with Rule 10M-6.023(1)(e), particularly in view of the fact that approxi- mately 85 percent of our foster children

      fall into the categories of children that should not be placed with Mr. Patterson.

      
      

6. Robert Patterson admitted to several law violation between 1960 and 1980. However, most of these violations were misdemeanors and committed while he was a juvenile. There was one felony violation (car theft) by Robert Patterson while he was a juvenile.

   
   

7. Robert Patterson admitted that in 1980 he was charged with larceny concerning an alleged fraudulent claim for unemployment compensation to which he pled nolo contendere. Notwithstanding that he pled nolo contendere to the charge, Robert Patterson contended that the unemployment compensation claim was a legal claim.

   
   

8. There was no evidence of any further law violations after the nolo contendere plea in 1980.

   
   

9. The Pattersons were licensed in Connecticut as foster parents for approximately 10 years.

   
   

10. During the time the Pattersons were licensed as a foster home in Connecticut the Patterson home was investigated because of a complaint alleging sexual abuse of a female foster child in the Pattersons' home. Although there was no finding of sexual abuse of this female, Robert Patterson admitted to having unintentionally touched the female's breast and buttocks while they were wrestling.

    
    

11. There was another incident where this same female foster child, while inebriated, rubbed Robert Patterson' penis several times.

    
    

12. Robert Patterson testified that he felt sexually attracted to this female child, but that he never acted on those feelings.

13. The female child that was the subject of the abuse complaint was not removed from the Pattersons' home, and subsequently the State of Connecticut allowed the Pattersons to adopt this child.

    
    

14. After this investigation, the Pattersons requested that their foster care home license be limited to males, ages 5 years to 11 years. This limitation on placement was requested by the Patterson because they felt inadequate to cope with sexually acting out or sexually abused children.

    
    

15. The Paterson's marriage counselor in Connecticut advised the Connecticut DCF (the equivalent of Florida DHRS) that the Pattersons had difficulty setting limits with sexuality, and recommended against placement of any child in the Pattersons' home with a known history of sexual acting out, or approaching puberty.

    
    

16. Many foster children are victims of sexual abuse and sexual exploitation which causes these foster children to behavior inappropriately. Often the Department is unaware of prior abuse or the resultant behavior when a child is placed in a foster home.

    
    

17. A foster parent's ability to deal appropriately with sexually abused and sexually acting out children is a very important attribute, particularly given the number of children in foster care with these difficulties.

    
    

18. The Pattersons requested to be licensed for placement of males only, ages 5 years to 11 years.

    
    

19. The Department has licensed foster homes with age and sex restrictions on placements. However, the Department attempts to avoid licensing homes with such restrictions. Such restrictions on placement interfere with the Department's statutory duty to keep siblings together, and with the goal of attempting to avoid moving children from foster home to foster home.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. Sections 409.175(1)(a), (5)(b), and (8)(a), Florida Statutes, in pertinent part provide:

    
    

    (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 . . . by providing for the establishment of licensing require- ments for such homes . . . and providing procedures to determine adherence to these requirements.

    * * *

    (5)(b) Upon application, the department shall conduct a licensing study based on its licensing rules; shall inspect the home . . . and shall interview the applicant. . . .

    * * *

    (8)(a) The department may (deny), suspend, or revoke a license. (Emphasis added)

    
    

22. Rule 10-6.023(1)(e), Florida Administrative Code, in pertinent part provides:

    
    

    (1) Philosophy and Rationale. In January 1989 the department adopted the MAPP Group Preparation and Selection program for use in the preparation and selection of prospective shelter, foster, and adoptive parents. The program provides a structured format through which prospective parents can be prepared to work with the department staff as team members in permanency planning. This program was developed by Child Welfare Institute and predicated on the belief that shelter, foster, and adoptive parents need to be prepared prior to the placement of children in their homes and that they need to be prepared to work as partners in permanency planning.

    * * *

    (e) The goal of the Group Preparation and Selection Program is to prepare individuals and families to make an informed decision about becoming foster or adoptive families. The decision is made with the department and is based on the capability and willingness to take on the "role" and develop the skills needed to foster or adopt. Foster and adoptive families who make good decisions and grow in their new roles work best with the department, birth families and other. These partnerships help children and youth have stability and permanence with a family. As successful foster and adoptive parents you must be able to:

    * * *

    3. Know the children. Identify the strength and needs of children and youth who have been abused, neglected, abandoned, and/or emotionally maltreated.

    
    

23. The Pattersons as the party seeking licensure as family foster home under Chapter 409, Florida Statutes, has the burden of establishing by a preponderance of the evidence the facts necessary to support their claim of entitlement to licensure, and that the Department had erred in denying them licensure as a family foster home. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern Company, 670 So.2d 932 (Fla. 1996); Florida Department of Transportation v. J. W. C. Co., Inc., 396 So.2d 778, (Fla. 1st DCA 1981). The evidence clearly establishes that the Pattersons have failed to meet their burden in this regard, notwithstanding that they had been licensed as a family foster home in Connecticut for ten years prior to making application for family foster home licensure in Florida.

24. The length of time that has past since Robert Patterson's last law violation leads me to believe that he has rehabilitated himself in this regard. However, what causes me, and apparently the Department, great concern is the Pattersons' inability to appropriately deal with sexually abused or sexually acting out children.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is recommended that the Department of Health and Rehabilitative Services enter a final order denying the Petitioners licensure as a family foster home.

RECOMMENDED this 23rd day of September, 1996, at Tallahassee, Florida.

WILLIAM R. CAVE, 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 23rd day of September, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 96-1567

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case.

Petitioners' Proposed Findings of Fact.

Petitioners elected not to file any proposed findings of fact and conclusions of law.

Department's Proposed Findings of Fact.

1. Proposed findings of fact 1 - 19 are adopted in substance as modified in Findings of Fact 1 through 19.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services

1317 Winewood Blvd., Bldg. 2, Room 204X Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1317 Winewood Blvd., Room 201

Tallahassee, Florida 32399-07001

Robert and Linda Patterson 8653 Indian Ridge Way Lakeland, Florida 33809

M. Elizabeth Wall, Esquire Department of Health and

Rehabilitative Services

200 North Kentucky Avenue Lakeland, Florida 33801

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.

Docket for Case No: 96-001567

Orders for Case No: 96-001567