STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on October 22, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Colleen Farnsworth, Esquire

Department of Health and Rehabilitative Services

400 Northwest Second Avenue Miami, Florida 33128

For Respondents: Arthur Spiegel, Esquire

1800 Northwest 7th Street Miami, Florida 33125

STATEMENT OF THE ISSUE

The issue presented is whether Respondents' foster home license should be revoked.

PRELIMINARY STATEMENT

By correspondence dated May 6, 1996, Petitioner advised Respondents that Petitioner intended to revoke Respondents'

foster home license, and Respondents timely requested an evidentiary hearing regarding that preliminary determination.

Petitioner presented the testimony of Darlise Baron, Fidelis Ezewike, Lee C. Hickey, Carol Rodriguez, Brenda Boston, Steve Krywuski, and Isabel Afanador. Respondents presented the testimony of Yolanda Yuston and Diana C. Diaz. Additionally, Petitioner's Exhibits numbered 4-8 were admitted in evidence.

No transcript of the final hearing has been filed. Both parties, however, filed post hearing proposed recommended orders, which have been carefully considered.

FINDINGS OF FACT

1. Respondents have been licensed by Petitioner to operate a foster home since August 1994. At all times material hereto, Mercedes and Topacio Hernandez were foster children who resided in Respondents' home. Mercedes was born on October 3, 1986, and Topacio was born on August 31, 1988.

2. On March 1, 1996, Darlise Baron, a protective investigator for Petitioner, picked up Mercedes and Topacio from school and took them home. When she picked them up, they and their clothes were dirty. When they arrived at Respondents' home, Baron allowed the girls to play outside in the dirt while she waited for a Spanish-speaking police officer to arrive to assist her with her investigation.

3. After Baron and the police officer entered Respondents' home, Baron inspected the kitchen area. The refrigerator

   contained "hardly any food", and the cabinets contained only a "couple of cans of vegetables." Respondent Ana Diaz explained to Baron that the girls received their breakfasts and lunches at school and the family had their evening meals catered.

4. Baron noted that Mercedes was "average weight" and Topacio was "small for her weight". It is assumed from Baron's description that Topacio was overweight.

5. Baron noticed a slide lock on the outside of the girls' bedroom door. The lock was the type where one merely raises the knob and slides the lock over. The lock was not a "dead bolt" lock.

6. What Baron did not notice was that there were such slide locks on the outside of all the bedroom doors in Respondents' home. The purpose of the locks was to prevent Respondents' granddaughter from entering any of the bedrooms unattended. That toddler was the child of Respondents' daughter who also resided with Respondents.

7. Baron determined that Mercedes and Topacio were not in immediate danger. She determined that the children did not need to be removed from Respondents' home.

8. On March 4, 1996, Brenda Boston, a foster care unit supervisor for Petitioner, visited Respondents' home. She checked the sheets on the girls' bed: the top sheet was clean but the bottom sheet was soiled. In her view, the girls' bedroom was untidy because there were some packed boxes in the room.

9. Boston checked the refrigerator and found it empty but there was a box of food in the freezer. The cupboards were also empty. Respondent Ana Diaz explained that their food was catered and showed Boston containers of warm food on the kitchen counter. There were no snacks available for the girls at that time.

10. While Boston was there, she observed the interaction among Mercedes, Topacio, and Respondents and found it to be good. She determined that the foster children were not in any immediate danger and left them in Respondents' home.

11. Lee C. Hickey is a social worker who has been the case manager for Mercedes and Topacio since December 1995. She sees the girls on a weekly basis, at home, at school, or in therapy. She has observed the interaction among them and the other students and the interaction among them and Respondent Ana Diaz and has found those interactions to be positive. Although she testified that there were no books in the Diaz foster home for the girls to read, she did not testify as to when that situation occurred and for how long that situation continued to exist. She did testify, however, that Topacio was in the second grade at the time and could not read.

12. On March 26, 1996, Carol Rodriguez, a counselor employed by Petitioner, visited the Diaz foster home. She observed the children's room to be neat. Although she noticed the slide lock on the bedroom door, she did not question its presence.

13. During that visit, Respondent Ana Diaz indicated that she was not happy with the Department and wanted Mercedes and Topacio removed from the home.

14. On March 29, 1996, Rodriguez spoke with Respondent Ana Diaz who told her that Petitioner needed to remove the children from the Diaz home that day because Respondent Alejandro Diaz needed surgery on an emergency basis and they were leaving for Columbia the next day.

15. Respondents did not lock Mercedes or Topacio in their bedroom for punishment, did not require them to clean the house in order to eat, did not keep them from eating meals as a family, and did not hit or threaten them.

16. The children missed several therapy appointments when Respondent Ana Diaz was unable to transport them to therapy.

    They did receive therapy, however, on February 14, 1996, two days after their father died following a terminal illness.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

18. Petitioner's correspondence to Respondents dated May 6, 1996, the charging document in this cause, contains primarily general allegations, references no statute Respondents are alleged to have violated, and cites to only one rule. It advises Respondents that they have failed to meet minimum standards for

    licensure as outlined in Rule 10M-6.025, Florida Administrative Code, a rule which is not applicable in the instant proceeding since Respondents are already licensed.

19. The correspondence further generally alleges that Respondents have violated the Bilateral Service Agreement, with no identification of the provisions of that Agreement allegedly violated. The correspondence then alleges that the Department's

    Specific concerns include:

    
    

    In May of 1995 there was evidence of neglect by the back-up caretaker.

    
    

    In March, 1996 there were some indications of neglect and threatened harm to the children, and allegations of confinement were verified.

    
    

    Furthermore, on March 28, 1996 observations were made that a lock was installed again on the children's room in spite of the fact that it had been removed on March 1, 1996 as per the instructions of Protective Investigations.

    
    

20. Petitioner offered no evidence as to any event during May 1995. Similarly, Petitioner did not identify or offer evidence as to any neglect or threatened harm during March 1996. As to the allegation of "confinement" during March 1996, the evidence is uncontroverted that there was a slide lock on the girls’ bedroom door during March. The only evidence offered by Petitioner, however, regarding confinement is that one of Petitioner's employees testified that Respondent Ana Diaz told her that on two occasions she locked the children in their room when someone that Diaz was afraid of came to the house.

21. That testimony is not credited. Not only is it illogical, but the witness seemed to exaggerate her testimony and appeared to rely on her report which she also testified had been revised by her supervisor. That witness also testified that the police came into the Diaz home and removed locks from doors because she told them to, an unlikely occurrence. Even if her testimony were credited, Petitioner only argues that confinement as punishment is prohibited; no evidence was offered that the children were confined as punishment. Further, the allegation is that such confinement occurred in March, and the witness did not testify as to when the allegedly admitted confinement occurred. Accordingly, Petitioner failed to prove its allegation.

22. The quality of evidence offered by Petitioner merits discussion. Much of the evidence offered by Petitioner was uncorroborated hearsay evidence, and some was "double hearsay" and even "triple hearsay". Petitioner offered psychological evidence from persons not competent to render such opinions. Petitioner also offered evidence from witnesses who contradicted each other. For example, Petitioner's witnesses testified that the children received therapy after their father died and that the children did not receive therapy after their father died.

23. Even with the inconsistencies in Petitioner's evidence, however, what is clear is that although Petitioner argues that the conduct of Respondents in March 1996 was serious enough that their foster home license should be revoked, none of Petitioner's

    witnesses determined that the children were in danger at the time and should be removed from the Diaz foster home. Rather, the evidence indicates the children were removed from the home only at Respondents' request so Respondents could return to Colombia on an emergency basis.

24. The parties disagreed on the burden of proof required in this proceeding. Petitioner suggested during the final hearing that the Petitioner's burden is a preponderance of the evidence; Respondents suggested the burden is clear and convincing. The parties were directed to argue the issue, with citation to any authority for their arguments, in their proposed recommended orders. Although both parties filed proposed recommended orders, only Respondents complied with the directive. Be that as it may, the Petitioner has failed to present even a preponderance of evidence to support its preliminary determination to revoke the Respondents' foster care license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered finding Respondents not guilty and dismissing the charges filed against them.

DONE AND ENTERED this 9th day of January, 1997, in Tallahassee, Florida.

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1997.

COPIES FURNISHED:

Colleen Farnsworth, Esquire

Department of Health and Rehabilitative Services

401 Northwest Second Avenue Miami, Florida 33128

Arthur Spiegel, Esquire

1800 Northwest Seventh Street Miami, Florida 33125

Richard Doran General Counsel

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk 1317 Winewood Boulevard Building Two, Room 204-X

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-003350

Orders for Case No: 96-003350