STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOAN HYERS, )

)

Petitioner, )

)

vs. ) Case No. 97-2162

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on August 12, 1998, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Victoria A. Vilchez, Esquire

1803 Australian Avenue, South West Palm Beach, Florida 33409

For Respondent: Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Petitioner's application for renewal of her family foster home license should be denied on the grounds set forth in the June 20, 1995, letter from the Department

of Health and Rehabilitative Services (HRS), Respondent's predecessor, to Petitioner.

PRELIMINARY STATEMENT

By letter dated June 20, 1995, HRS advised Petitioner of its intention to deny Petitioner's application for renewal of her family foster home license. The letter read as follows:

I am writing to inform you that your foster home license will not be renewed when it expires on June 30, 1995. This decision is based on a Proposed/Confirmed Abuse Report.

Please be advised that if you do not agree with this decision to close your foster home, you have the right to request an administrative hearing pursuant to Section 120.57 of the Florida Statutes. If you desire a hearing, please put your request in writing within 60 days to:

Karen Miller

District Legal Counsel

111 Georgia Avenue

West Palm Beach, Florida 33401 (407)837-5075

If we do not hear from you within the specified time frame, we will consider the matter resolved and you will forfeit any further right to appeal.

While we regret the necessity of closing your home, we do extend our appreciation to you for your service as a foster parent.

A dispute arose between Petitioner and HRS concerning whether she had forfeited her right to appeal by not timely requesting an administrative hearing on the proposed denial

of her relicensure application, and Petitioner filed a notice of appeal with the Fourth District Court of Appeal seeking review of HRS's determination that Petitioner had waived her right to an administrative hearing. On or about October 16, 1996, Petitioner and HRS entered into a Settlement Agreement, which read as follows:

1. Appellant, Joan Hyers, will withdraw her appeal in Case Number 96-01452 presently pending before the Fourth District Court of Appeal.

   
   

2. Within thirty days of the date of this signed settlement, Appellant, Joan Hyers, will send a request to Appellee, the Department of Health and Rehabilitative Services, for a hearing regarding the Department's decision not to renew Appellant's foster home license.

   
   

3. Appellee, the Department of Health and Rehabilitative Services, will forward Appellant's request for a Chapter 120 administrative hearing to the Division of Administrative Hearings.

   
   

4. The Division of Administrative Hearings will grant Appellant a hearing on the Department's decision not to renew her foster home license.

   
   

5. The Department will pay Appellant's attorney's fees in the amount of

   $3,000.00.

   
   

6. The terms of this agreement embody the entire settlement agreement regarding the appeal in Case Number 96- 01452.

On October 21, 1996, Petitioner filed with HRS the written request for an administrative hearing referred to in

the Settlement Agreement. HRS referred the matter to the Division of Administrative Hearings on May 9, 1997.

As noted above, the hearing was held on August 12, 1998.1 At the hearing, eight witnesses testified: Pearl Long, A. G., Janet Kerimoglu, Vivian Brown, Stephen Lord, Mary Bosco, Sandy Owen, and Petitioner. In addition to the testimony of these eight witnesses, various exhibits were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned announced, on the record, that if the parties desired to file proposed recommended orders, they had to do so within 14 days. On August 26, 1998, and August 31, 1998, respectively, Respondent and Petitioner filed their proposed recommended orders. These proposed recommended orders have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. Respondent is (as was its predecessor, HRS) a state government licensing and regulatory agency.

2. From September of 1989 to June 30, 1995, Petitioner was licensed by HRS (on a yearly basis) to operate a family foster home at her residence in Palm Beach County.

3. In May of 1994, as part of the licensure renewal process, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children" (Agreement).

4. In so doing, she agreed that she would, as a licensed foster parent, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the department," "immediately report any injuries or illness of a child in [her] care," and "abide by the department's discipline policy."

5. The previous day (May 23, 1994), Petitioner had received and signed a copy of HRS's "discipline policy," which provided as follows:

   FOSTER PARENT(S):

   
   

   You are aware that for some time, Health and Rehabilitative Services has discouraged the use of Physical punishment, including spanking, for children in foster care.

   
   

   Now, however, we have an Administrative Rule statewide which prohibits foster parents from using corporal punishment on foster children.

   
   

   This section of administrative Rule 10M- 6, which deals with discipline is reproduced in the following paragraph.

   
   

   "Licensing and relicensing procedure developed by the Department shall include the presentation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate nonabusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through

   which the child develops the self- control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behaviors. The purpose of discipline is education and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal controls. Foster parents are expected to define rules which establish limits and types of acceptable behavior. These rules must be clearly explained to each child and applied equally to all children.

   Prohibited disciplinary practices

   include group punishments for misbehavior of individuals; withholding of meals, mail or family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading punishment which subjects the child to ridicule; being placed in a locked room; and delegation of authority for punishment to other children or persons not known to the child. The use of isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such periods of isolation shall be observed and supervised by the foster parent to ensure the safety of the child."

   
   

   If you have problems with this new rule, please discuss this with your licensing counselors who will be able to help you work out alternative disciplinary techniques for each child, according to his/her needs.

   
   

   My signature acknowledges that I have read this statement, that I understand the content and agree to abide by it.

   
   

6. A. G. is a 12 year-old foster child who currently resides in Boys Town in Tallahassee.

7. Before entering the foster care system, he had been the victim of abuse.

8. In 1994, A. G. lived in Petitioner's family foster home along with three other male foster children, J. W.,

   M. M., and B. P., all of whom were teenagers with troubled pasts and juvenile records.

9. On or about December 15, 1994, the day before A. G. was scheduled to leave Petitioner's home for another foster home, the other boys angrily reported to Petitioner that A.

   G. had misappropriated a gift certificate that belonged to

   
   

   M. M. and a watch that belonged to B. P. M. M. was particularly upset and angry about what A. G. had done.

10. Upon receiving this report, Petitioner instructed the boys to "take care of" the matter.

11. The boys then went to A. G.'s room and proceeded to hit A. G. with their hands and a belt. A. G. sustained a number of bruises on his buttocks and the back of his legs as a result of the attack.

12. A. G. yelled and screamed as he was being hit.

    
    

13. Petitioner was in her bedroom, which was adjacent to the room where the beating took place.

14. At no time during the attack did she leave her bedroom to tell the boys to stop beating A. G., nor did she take any other action to stop the beating.

15. Petitioner exercised extremely poor judgment in instructing the older boys to "take care of" the matter. She should have realized that the carte blanche she gave J. W., M. M., and B. P., who were upset and angry with A. G., placed A. G.'s physical safety at risk. She compounded her error by not carefully monitoring the older boys subsequent activities to make sure that they resolved the matter appropriately without harming A. G.

16. The following morning, A. G. left Petitioner's home for another foster home, that of Janet Kerimoglu and her husband.

17. A. G. arrived at the Kerimoglu home with very few belongings. Moreover, his physical appearance concerned Ms. Kerimoglu.

18. A. G. appeared to be very thin. Furthermore, he had head lice and fresh bruises on his body. When asked about the bruises, A. G. explained that he had been beaten up by some teenagers the day before at Petitioner's home.

19. A report that A. G. had been the victim of abuse while at Petitioner's home was made to HRS's abuse registry.

20. The report was investigated by HRS's protective services investigative unit.

21. On January 10, 1995, following the completion of the investigation, FPSS Report No. 94-117809 issued. The report classified as "proposed confirmed" the allegation

    that Respondent was guilty of neglect in connection with the beating that A. G. received at her home on or about

    December 15, 1994. According to the report, the beating occurred "because of [Petitioner's] lack of supervision and [her] failure to protect [A. G.]," a finding which is supported by the preponderance of the record evidence in the instant case.

22. A request to expunge or amend the report was denied on June 6, 1995.

23. By letter dated June 20, 1995, Petitioner was advised that her foster family home license would not renewed because of the finding of neglect made in FPSS Report No. 94-117809.

    CONCLUSIONS OF LAW

    
    

24. With certain exceptions not applicable to the instant case, "a person, family foster home, or residential child-caring agency shall not receive a child for continuing full-time care or custody unless such person, home, or agency has first procured a license from [Respondent] to do so." Section 409.175(3)(a), Florida Statutes.

25. Respondent may deny an application for an initial or renewal family foster home license, or it may suspend or revoke a family foster home license it has already issued, if the applicant or licensee has committed "[a]n intentional or negligent act materially affecting the health or safety

    of children in the [applicant's or licensee's] home." Section 409.175(8)(b)1, Florida Statutes.

26. Where, as in the instant case, an applicant for renewal licensure disputes Respondent's announced intention to deny licensure on the ground that the applicant committed such an "intentional or negligent act," Respondent bears the burden of presenting proof of the applicant's commission of the alleged act. See Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1st DCA 1996).

27. Respondent presented such proof in the instant case. As a foster parent, Petitioner had a duty to supervise all of the children in her home and to protect each of them from harm. The preponderance of the record evidence reflects that she breached this duty on or about December 15, 1994, when, acting with reckless disregard for

    A. G.'s safety and physical well-being and contrary to HRS's "discipline policy" (of which she was aware), she effectively delegated to the older boys in the home, who were upset and angry with A. G. due to their suspicion that he had stolen from two of them, her parental authority and responsibility to respond to such suspected wrongdoing and then failed to monitor the situation to make sure that the older boys did not respond in a physical or otherwise inappropriate manner (a response that was certainly

    foreseeable at the time Petitioner relinquished her disciplinary authority and responsibility to the boys). Petitioner's dereliction of her duty to supervise and protect the foster children in her care materially affected the health and safety of A. G., inasmuch as the older boys did indeed respond with physical force and A. G. suffered bruises as a result of their use of force.

28. Because the preponderance of the record evidence establishes that Petitioner committed "[a]n intentional or negligent act materially affecting the health or safety of

[a] child[] in [her foster] home," her application for renewal of her family foster home license should be denied pursuant to Section 409.175(8)(b)1, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for renewal of her family foster home license.

DONE AND ENTERED this 4th day of September, 1998, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1998.

ENDNOTE

1 The hearing was originally scheduled to commence on July 28, 1997, but was continued on several occasions.

COPIES FURNISHED:

Victoria A. Vilchez, Esquire 1803 Australian Avenue, South West Palm Beach, Florida 33409

Colleen Farnsworth, Esquire Department of Children and

Family Services

111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401

Gregory D. Venz, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building Two, Suite 204Z 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.

1 The hearing was originally scheduled to commence on July 28, 1997, but was continued on several occasions.

Docket for Case No: 97-002162

Orders for Case No: 97-002162