STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 98-1609

)

LOIS KELLY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on August 19, 1998, in Sanford, Florida.

APPEARANCES

For Petitioner: Carmen Muniz Sierra, Esquire

Department of Children and Family Services

400 West Robinson Street Orlando, Florida 32801

For Respondent: Timothy Straus, Esquire

Moyer and Straus

2627 West State Road 434

Longwood, Florida 32779 STATEMENT OF THE ISSUES

In a letter dated February 17, 1998, the Department of Children and Family Services(DCFS) notified Lois Kelly that DCFS intended to revoke her foster home license for five specified

reasons. Later, during the course of pre-hearing discovery, DCFS narrowed the issues to three violations:

A substitute care parent must not use corporal punishment of any kind.

65C-13.010(l)(b)5f, Florida Administrative Code (FAC). You have used corporal punishment to discipline the children in your care. More specifically, the children report that you routinely slapped them and hit them with a "switch."

. . .

The home and premises must be free from objects, materials, and conditions which constitute a danger to children. 65C-13.011(12)(b), FAC. The yard area was full of trash, the boys' room smelled of urine and there were roaches crawling around at the time the licensing representative visited the home.

. . .

A substitute care parent must not punish children for bed-wetting for errors during the toilet training process. 65C-13.010(l)(b)5i, FAC. Children in your care were punished by corporal punishment for bed-wetting.

The issues in this proceeding are whether those violations occurred and if so, whether they constitute bases for license revocation.

PRELIMINARY STATEMENT

After Ms. Kelly's request for formal hearing and the agency's referral to the Division of Administrative Hearings, the hearing was scheduled by the assigned Administrative Law Judge, Daniel Kilbride. At the request of counsel for Ms. Kelly, Judge

Kilbride continued the hearing once, but declined a second later request for continuance. The hearing proceeding, as described above, with the undersigned judge presiding.

At the hearing the agency presented these witnesses: K.W. and L.D.(foster children), Juanita Warren White, and Karen Norton. The agency had one exhibit marked for identification but did not offer it into evidence. Ms. Kelly testified in her own behalf and had two exhibits admitted into evidence.

At the close of the evidentiary hearing, the Administrative Law Judge left open the record to permit the parties to provide additional evidence. Respondent needed an opportunity to obtain an order from circuit court requiring the agency to disclose the whereabouts of a material witness whose identity was, according to the agency, confidential pursuant to Chapter 39, Florida Statutes.

Although the circuit court entered an agreed-upon order for release of information on October 1, 1998, the parties later informed the Administrative Law Judge that no further evidence would be presented.

The Administrative Law Judge then established

January 11, 1999, as the deadline for proposed recommended orders. This recommended order is based on consideration of those proposals as well as the transcript and exhibits from the August 19, 1998, hearing.

FINDINGS OF FACT

1. Respondent, Lois Kelly, was licensed as a foster home by the Department of Health and Rehabilitation Services (HRS) on September 29, 1995. She was a working, single woman who had raised one child, now an adult son, who lives on his own.

2. HRS was the predecessor to the agency now known as the Department of Children and Family Services, the Petitioner in this proceeding.

3. Ms. Kelly's foster home license was for three children; the maximum number of children under any foster home license was five. However, at various times during the two years that she was licensed, Ms. Kelly cared for four, six, and (for one weekend) eight children placed with her by HRS foster care workers.

4. Juanita Warren White was assigned to be Ms. Kelly's foster home licensing representative in 1996. Ms. White visited the Kelly home three times: July 11, 1996; August 1, 1996; and September 24, 1996.

5. On her first visit Ms. White noted wet carpet and a strong smell of urine. There was wet carpet hanging outside.

   The toilet in the children's bathroom had overflowed after one of the boys hid a toy in the commode. In addition, there was an appearance of general disarray, including garbage in the garage where the children played.

6. By the September visit, Ms. Kelly had corrected

   the series of items noted as problems by Ms. White. Ms. Kelly was relicensed for another year.

7. Karen Norton was assigned as Ms. Kelly's licensing representative in 1997. After one unsuccessful attempt when Ms. Kelly was not home, Ms. Norton's first home visit was April 11, 1997.

8. On this date, there were four foster children residing with Ms. Kelly: J. and B., pre-school toddlers; K., 8 years old; and H.J., 9 years old. The bedroom shared by the two young boys was cluttered with toys and clothes; a roach was crawling up the wall. In the bedroom shared by the older boys, there was a strong odor of urine. One of the boys was a bed-wetter.

9. Ms. Norton also observed a bleach bottle stored on the kitchen floor within reach of the children. She found the garage had a seating area with a sofa and TV set that was turned on.

   The garage included tools and yard equipment. She observed trash and an old grill/smoker in the backyard and a discarded refrigerator turned to the wall with a make-shift basketball hoop set up in the refrigerator coils.

10. After completing her inspection, Ms. Norton advised Ms. Kelly that the trash would have to be picked up, the bleach stored properly, the refrigerator and cooker disposed of, the urine cleaned up, and a bug extermination scheduled.

11. Ms. Norton returned on May 6, 1997, for an unscheduled visit.

12. The trash was gone, but the refrigerator remained and Ms. Kelly said it would be removed within a week. There was no urine odor in the boys' bedroom and Ms. Kelly told her that she required the bed-wetting child to clean his bed with bleach water. Ms. Norton explained that it was inappropriate and dangerous to have a child use bleach for cleaning. Ms. Norton was concerned about hazardous conditions in the Kelly home, including the obvious use of the garage as a play-room.

13. Some time between May and September 1997, HRS learned that Ms. Kelly was using corporal punishment on her foster children. The children were removed from her home and after being told that she would be charged with child abuse, Ms. Kelly agreed to give up her license; no children have been placed in her home since September 1997.

14. At hearing, Ms. Kelly confirmed that she would not have relinquished her license without the threat and that she still wants to be a foster home parent. The agency has proceeded with a license revocation and provided notice and opportunity for a hearing in its letter dated February 17, 1998.

15. Two children, former foster child residents in

Ms. Kelly's home, testified at hearing: L.D.-age 11; and C.W.-age

1. The testimony of both children was credible regarding discipline used by Ms. Kelly.

2. Ms. Kelly disciplined two pre-school aged boys by switching them on their legs or hands with a switch from the

   yard. The 3 year-old cried; the 5-year old did not cry. Punishment occurred when the boys broke something belonging to Ms. Kelly.

3. On another occasion Ms. Kelly came home and found that

   
   

   L.D. had been tussling with a 5-year old boy and had ripped the boy's underwear, which L.D. claimed was his. Ms. Kelly took L.D. into the hall outside the bedroom and swatted him on his arms, legs and waist with her open hand. She continued hitting him when he was on the floor. He was afraid and cried.

4. Ms. Kelly also spanked K.H. on at least two occasions for wetting his bed. She used her hand to hit him. She also continued to require him to clean up the urine with a rag and bleach.

5. Ms. Kelly was trained and given hand-outs regarding appropriate discipline prior to her licensure as a foster home. She understood that she was never permitted to strike the children or use any form of corporal punishment.

6. Corporal punishment is harmful to foster children even when it is not excessive, as many foster children have come from abusive environments.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative hearings has jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

8. Sections 409.175, Florida Statutes, provides, in pertinent part:

   409.175 Licensure of family foster homes, residential child-caring agencies, and child-placing agencies.--

   
   

   (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, residential child-caring agencies, and child-placing agencies by providing for the establishment of licensing requirements for such homes and agencies and providing procedures to determine adherence to these requirements

   . . .

   
   

   (4)(a) The department shall adopt and amend licensing rules for family foster homes, residential child-caring agencies, and child-placing agencies. The department may also adopt rules relating to the screening requirements for summer day camps and summer 24-hour camps. The requirements for licensure and operation of family foster homes, residential

   child-caring agencies, and child-placing agencies shall include:

   1. The operation, conduct, and maintenance of these homes and agencies and the responsibility which they assume for children served and the evidence of need for that service.

   . . .

   
   

   (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.

   
   

9. Rule 65C-13.010, Florida Administrative Code, unequivocally prohibits the discipline employed by Ms. Kelly:

   1. Responsibilities of the Substitute Parent to the

child.

1. Discipline

   
   

   . . .

   
   

   1. the substitute care parent must discipline children with kindness, consistency, and understanding, and with the purpose of helping the child develop discipline with self-control.

. . .

f. The substitute care parent must not use corporal punishment of any kind.

. . .

i. The substitute care parent must not punish children for bed wetting or errors which occur during the toilet training process.

1. Rule 65C-13.011, Florida Administrative Code, requires that the home and premises must be free from objects, materials, and conditions which constitute a danger to children.

2. Whether the standard of proof is preponderance of the evidence or the stricter standard of clear and convincing evidence (see Section 120.57(1)(h), Florida Statutes) the agency has met its burden of proving that Ms. Kelly's home does not meet the requirements of Section 409.175, Florida Statutes, and relevant regulations.

3. Standing alone, the physical conditions of the home may not be sufficient basis to recommend revocation, but Ms. Kelly's use of corporal punishment on several children and on several occasions is evidence of her unwillingness or inability to conform to essential requirements for licensure. Her counsel's suggestion that the agency is somehow estopped from revoking her license because it placed too many children in the home is without any authority. Moreover, once the agency learned of the corporal punishment, it removed all of the children.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED: that the agency issue its final order revoking the foster home license of Lois Kelly.

DONE AND ENTERED this 25th day of February, 1999, in Tallahassee, Leon County, Florida.

MARY CLARK

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1999.

COPIES FURNISHED:

Timothy Straus, Esquire Moyer and Straus

2627 West State Road 434

Longwood, Florida 32779

Carmen Muniz Sierra, Esquire Department of Children

and Family Services

400 West Robinson Street Orlando, Florida 32801

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel Department of Children

and Family 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 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: 98-001609

Orders for Case No: 98-001609