STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARMEN TORRES and ANGEL TORRES, )

)

Petitioners, )

)

vs. ) CASE NO. 96-3819

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings (Division), held a formal hearing in this matter on September 24, 1996, in Bartow, Florida.

APPEARANCES

For Petitioners: Carmen Torres, Pro se

Angel Torres, Pro se 801 North Anoka Avenue

Avon Park, Florida 33825

For Respondent: Jack Emory Farley, Esquire

Department of Health and Rehabilitative Services

270 Bartow Municipal Airport Bartow, Florida 33830

STATEMENT OF THE ISSUE

Should the renewal of Petitioners' family foster home license for the 1995-

96 license year be denied?

PRELIMINARY STATEMENT

By Notice of Denial dated April 30, 1996, the Department advised Petitioners that the renewal of their family foster home license for the 1995-96 license year had been denied, and further advised Petitioners of their right to a hearing. By letter dated May 10, 1996, Petitioners requested a formal hearing regarding the denial of their family foster home license. By Notice filed with the Division on August 15, 1996, the Department referred the matter to the Division for the assignment of a Hearing Officer, now Administrative Law Judge, and the conduct of a hearing.

At the hearing, Petitioners testified on their own behalf but presented no other witnesses. Petitioners' exhibits one through six were received as evidence. The Department presented the testimony of Ed Ramsey, C. S., Liz Peralta (Torres) and Selma T. Sanford-Huber. Department's exhibits one and two

were received as evidence. Chapter 409, Florida Statutes (1995), and Rule 10M- 6.024, Florida Administrative Code, were officially recognized.

There was no transcript of this proceeding filed with the Division. At the conclusion of the hearing, the Department requested additional time to file proposed findings of fact and conclusions of law. The request was unopposed by Petitioners. The request was verbally granted on the record 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 findings of fact and conclusions of law under the extended time frame. The Petitioners have elected not file any proposed findings of fact and conclusions of law.

FINDINGS OF FACT

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

1. At all times pertinent to this proceeding, the Department was the agency in the State of Florida responsible for the initial licensing and relicensure of family foster homes and foster parents.

   
   

2. Petitioners Carmen Torres and Angel Torres (Petitioners) were licensed by the Department as foster parents and issued a Certificate of License, Certificate Number 0894-13-3, to operate the C and F Foster Home located at 801 North Anoka Avenue, Avon Park, Highlands County, Florida. The license was issued for a period of one year beginning August 12, 1994, and ending on August 12, 1995, unless renewed, extended, withdrawn, or revoked for cause.

   
   

3. Sometime prior to August 12, 1995, the procedure set forth in Rule 10M- 6.020, Florida Administrative Code, for relicensing Petitioners was initiated by the Department. During the relicensing process, allegations of bizarre punishment and improper confinement of foster children were made against Petitioners.

   
   

4. Based on these allegations, the Department denied Petitioners the renewal of their family foster home license, but the Department failed to notify Petitioners of that decision. Therefore, Petitioners were not given a point of entry to contest the Department's decision.

   
   

5. After Petitioners' family foster home license expired on August 12, 1995, Petitioners contacted the Department's Bartow, Florida office by telephone to inquire as to why their family foster home license had not been renewed.

   
   

6. In response to the Petitioners' telephone inquiry, the Department, by letter dated April 30,1996, advised Petitioners that their family foster home license had lapsed on August 12, 1995. The letter also advised Petitioners that their family foster home license had been denied primarily on the basis of "substantiated allegations of bizarre punishment and improper confinement of foster children," and further advised Petitioners of their right to contest that decision.

   
   

7. C. S., a 12-year old foster child that was placed with Petitioners for approximately a week sometime around April 1995, testified that he was treated "pretty good" by the Torres; that although he was required to watch television a "lot" on a screened-in porch, he did not consider himself being improperly confined because he was allowed to leave the porch to use the bathroom and to

   eat. The Torres kept the children on the porch so that the Torres could maintain contact with the children while they worked in the home. C. S. also testified that he was not particularly "crazy" about the food prepared by Petitioners because it contained peppers and onions. C. S.'s younger brother,

   B. S., and younger sister, A. S., both foster children, were also placed with Petitioners at the same time. C. S. did not remember any of them being mistreated or punished in any fashion.

   
   

8. The Department failed to present evidence to show that Petitioners punished the foster children placed under their care in a bizarre manner or any other manner, or that they improperly confined foster children placed under their care, or mistreated foster children placed under their care, notwithstanding the testimony of Liz Peralta (Torres) to the contrary, which I find totally lacking in credibility. It was obvious that this witness, a former daughter-in-law, had an "axe to grind" with Petitioners.

   
   

9. Selma T. Sanford-Huber, a Department employee responsible for licensing foster parents and family foster homes, testified that she was in Petitioners' home around April 23, 1995, for the purpose of relicensing. Huber further testified that due to the allegations, all foster children were removed from Petitioners' home on May 5, 1995, and that no other foster children were to be placed in Petitioners' home during the investigation. Although Huber testified that she was concerned about the foster children in Petitioners' home, she was unable to present evidence of anything specific that would justify her concern for the children and require the denial of the renewal of Petitioners' family foster home license for the 1995-96 license year.

   
   

10. It is clear from the evidence, or from the lack of evidence, that the Department has failed to prove the allegations set forth in its Notice of Denial dated April 30, 1996. Likewise, it is clear from the record that but for the allegations of "bizarre punishment and improper confinement" the Petitioners' family foster home license would have been renewed for the 1995-96 license year. However, that license would have expired on August 12, 1996, and there is no evidence that the procedure for relicensing Petitioners for the year 1996-97 is in progress or has been accomplished.

    
    

    CONCLUSIONS OF LAW

    
    

11. 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.

    
    

12. The Department seeks to deny renewal of Petitioners' family foster home license for the 1995-96 license year on the basis that Petitioners allegedly subjected foster children placed in their care to bizarre punishment and improper confinement in violation of Section 409.175, Florida Statutes, and Rule 10M-6.024, Florida Administrative Code..

1. In pertinent part, Section 409.175(8)(a), Florida Statutes, provides: (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 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 if this section or licensing rules promulgated pursuant to this section.

   
   

2. In pertinent part, Rule 10M-6.024(1)(b)5., Florida Administrative Code, provides:

   
   

   1. Responsibilities of the Substitute Parent to Child.

      (b) Family care Activities.

      * * *

      5. Discipline.

      * * *

      c. Substitute care parents should use positive methods of discipline, including the following:

      * * *

      (IV) Grounding, restricting the child to the house or yard, or sending the child out of the room and away from the family activity;

      * * *

      1. The substitute care parents must not subject children to cruel, severe, humiliating or unusual punishment, for example, to use soap to wash out the mouth, eating hot sauces or pepper, placing in hot water, kneeling on stones, etc.

      2. The substitute care parents should not use corporal punishment of any kind.

      
      

3. The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue. Florida Department of Transportation v. J. W. C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).

Normally, the applicant (Petitioners) would have the burden of presenting evidence as to their fitness for licensure as foster parents. However, in the instant case the only basis for denying the renewal of Petitioners' family foster home license was the allegations that Petitioners had subjected foster children placed in their care to bizarre punishment and improper confinement in violation of Section 409.175, Florida Statutes, and Rule 10M-6.024, Florida Administrative Code, and were thus unfit for licensure. Therefore, the Department has the burden of presenting evidence that Petitioners subjected foster children placed in their care to bizarre punishment and improper confinement in violation of the statutes and department rules. Furthermore, the Department has the burden of presenting its proof by the preponderance of the evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So.2d 932 (Fla. 1996). From the evidence it is clear that the Department has failed to meet its burden under any standard of proof.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, recommended that Petitioners' family foster home license be renewed for the 1995-96 license year which ended on August 12, 1996. It is further

recommended that should Petitioners wish to renew their family foster home license for the 1996-97 license year, which began on August 12, 1996, then the Department shall, in full cooperation with Petitioners, proceed with all due haste to complete the relicensing procedures outlined in Rule 10M-6.020, Florida Administrative Code. Upon completion of those procedures, should the Department's decision be to deny Petitioners renewal of their family foster home license for the 1996-97 license year, then the Department should immediately notify Petitioners of its decision and advise them of their right to a hearing to contest the denial.

RECOMMENDED this 29th day of October, 1996, at Tallahassee, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-66847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1996.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 2, Room 204X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran General Counsel

Department of Health and Rehabilitative Services

1317 Winewood Boulevard, Room 201

Tallahassee, Florida 32399-0700

Angel and Carmen Torres 801 North Anoka Avenue Avon Park, Florida 33825

Jack Emory Farley, Esquire Department of Health and

Rehabilitative Services

270 Bartow Municipal Airport Bartow, Florida 33830

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: 96-003819

Orders for Case No: 96-003819