STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 98-1739

)

CHRISTOPHER RUND )

and SHERRIE RUND, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was provided and on September 18, 1998, at the Inverness City Hall, 212 West Main Street, Inverness, Florida, a formal hearing was held in this case. Authority for conducting that hearing is set forth in Sections 120.569(1) and 120.57(1), Florida Statutes. The case was heard before Charles C. Adams, administrative law judge.

APPEARANCES

For Petitioner: Joseph Sowell, Esquire

Department of Children and Family Services

2315 Highway 41, North

Inverness, Florida 32653

For Respondent: Sherrie Rund, pro se

13059 East Shawnee Trail Inverness, Florida 34450

STATEMENT OF THE ISSUES

Are Respondents entitled to have Petitioner renew their license to provide foster home care?

PRELIMINARY STATEMENT

On March 16, 1998, Petitioner notified Respondents that Respondents' foster home license would not be renewed, based upon an investigation of neglect, resulting in a confirmed report against Respondents. Given the opportunity to contest that preliminary decision, and in accordance with Section 120.57, Florida Statutes, Respondents in the person of Sherrie Rund, requested a hearing. The request was received by the Petitioner on April 3, 1998. On April 13, 1998, the Division of Administrative Hearings received Petitioner's request that an administrative law judge be assigned to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. Following one continuance, the case was heard on the aforementioned date.

At hearing, Petitioner presented Joann Carman, Michael Johnson, Thomas Napolitano, and Sherrie Rund as its witnesses. Respondent, Sherrie Rund, presented Linda Bennett as her witness. Petitioner's Exhibits 1 through 5 were admitted. Respondents' Exhibits 1 and 2 were admitted.

The hearing record was transcribed. The hearing transcript was filed with the Division of Administrative Hearings on September 30, 1998. Although the parties were given the opportunity the submit proposed recommended orders, they did not file proposed recommended orders.

FINDINGS OF FACT

1. Petitioner licenses and re-licenses persons who provide residential care to children. This process is in accordance with Chapter 409, Florida Statutes, and Chapter 65C-13, Florida Administrative Code. Respondents have held a foster home license pursuant to those laws.

2. On March 16, 1998, Petitioner advised Respondents that Respondents would not be re-licensed for the upcoming year for reason that: "A recent investigation of neglect resulted

   in a confirmed report against you."

   
   

3. As was revealed at the hearing, the more specific basis for the denial was in accordance with Section 409.175(8)(b)1, Florida Statutes, in which Petitioner accused Respondents, in the person of Sherrie Rund, of a negligent act which materially affected the health and safety of a child in her home. That child is J.V., date of birth July 15, 1995. Moreover, the basis for non-renewal of the foster home license was premised upon the further allegation that Sherrie Rund was found by Petitioner's counselor to be unable to secure the "Abuse Registry" prior to issuance of a new foster home license, as provided in Rule 65C- 13.006(3), Florida Administrative Code.

4. On January 6, 1998, Respondents were caring for three foster children in their home in Inverness, Florida. In addition to J.V. there was M.V., who was 3½ years old, and J.S., who was

   12 months old. J.V. and M.V. are brothers.

5. The day before Petitioner had asked Respondent, Sherrie Rund, to take two additional children into her home to receive foster care. On the day before, Mrs. Rund had also suffered a miscarriage.

   
   

6. Mrs. Rund left her home on the morning of January 6, 1998, to run some errands and to eventually drive to Brooksville, Florida, to pick up the newest foster children. At some point in time in her travels on January 6, 1998, with J.V. and J.S. in her car, Mrs. Rund noticed a loud knocking sound in her car and decided to have an automobile mechanic with whom she was familiar check the status of her car, in anticipation of her trip to Brooksville.

7. Upon arriving at the mechanic's shop, the mechanic told Mrs. Rund that she was not going anywhere in the car, and that something was not right with the car. The mechanic got into the car with Mrs. Rund and they made a test drive.

8. When they returned to the mechanic's shop, the mechanic pointed out a block that was part of the suspension system, referred to as a lift kit in the area of the rear axle. That block had shifted over and the mechanic told Mrs. Rund that all that would be necessary to correct the problem was to adjust two bolts.

9. When Mrs. Rund, the mechanic, and her children had

   returned to the shop, the children were asleep. As a consequence, Mrs. Rund asked the mechanic if it would be acceptable to leave the children in the car while the mechanic made repairs to the automobile. Apparently, the mechanic was not opposed to that arrangement. The mechanic told Mrs. Rund that it would only take a couple of minutes to tighten the parts that were causing the problem. With that assurance, Mrs. Rund allowed

   
   

   the mechanic to lift the car off the concrete floor in the shop by the use of a hydraulic lift. Once the car had been lifted, the distance from the car to the shop floor was approximately 3 to 4 feet. The mechanic began his work and noticed that threads in the bolts that were being tightened had become stripped. At that time Mrs. Rund was sitting on a stool by the car door. The mechanic summoned her and asked to show her what was wrong. As Mrs. Rund walked around the car she heard a slight noise. It was

   J.V. J.V. had been strapped in his car seat attached to the back seat of the automobile, but he had awakened from his nap in the back seat of the car, gone between the seats in the front of the car, opened the door and stepped out onto the platform that supported the car on the lift. Before anyone could intervene,

   J.V. fell from the platform to the floor of the shop fracturing his skull. The skull fracture was of the temporal bone. In addition, J.V. also suffered an abrasion of one ear and split his lip in the fall.

10. The automobile in question was a Jeep vehicle with tinted windows, that created a condition in which Mrs. Rund could not see into the automobile while it was on the lift.

11. After the accident Mrs. Rund immediately picked the child up and noted that he appeared "a little incoherent." She could not drive her car. But she knew that her father was about two miles away. Mrs. Rund's father immediately responded to her request for assistance. They drove J.V. to the emergency room at

    
    

    the Citrus Memorial Hospital in Inverness, Florida, for treatment. Later that day, J.V. was taken to Shands Hospital at the University of Florida, in Gainesville, Florida, for additional treatment.

12. Mrs. Rund and her father managed to transport J.V. to the emergency room at Citrus Memorial Hospital within 10 minutes of the accident. Upon arrival Mrs. Rund attempted to advise Petitioner about the accident by contacting the case worker responsible for her foster children. Four of the people who were on the list of possible contacts were unavailable. Mrs. Rund also wanted to inquire about the status of the two new children who were going to be left in her care that day. Eventually,

    Mrs. Rund explained to a case worker the circumstances of J.V.'s accident. In answer to her question, the case worker told Mrs. Rund that the two additional children were going to be brought to

    Mrs. Rund's home in any event. The children were brought to Mrs. Rund's home on January 6, 1998, and were kept for the moment by Mrs. Rund's mother. The two additional children were siblings 2½ and 5 years old.

13. Mrs. Rund spent about 6 to 7 hours at the Citrus Memorial Hospital attending J.V. and making certain of his care. Beyond that time, Mrs. Rund felt the need to return home and take a shower because of her miscarriage the day before and because she had blood on her shirt resulting from J.V.'s injuries.

    Mrs. Rund also had concern about the welfare of the two additional children that were being brought to her home. There had been some discussion between Mrs. Rund and a nurse at the Citrus Memorial Hospital, who insisted that Mrs. Rund should accompany J.V. to Shands Hospital. Mrs. Rund replied that she needed to check the situation at home and then she would go to Shands. Eventually, the nurse contacted someone from the Child Protective Service. Mrs. Rund spoke to that person and having decided that it would be acceptable for J.V. to ride to Shands unaccompanied by her, Mrs. Rund allowed J.V. to be transported to Shands Hospital without her.

14. A short time later, Mrs. Rund's parents picked her up at the Citrus Memorial Hospital and took her home. By that time Christopher Rund, Mrs. Rund's husband, had arrived at their home and was available to take care of the other four children.

15. After spending a little time with the children in her

    home and taking a shower, Mrs. Rund called Shands Hospital to check on the well-being of J.V. Mrs. Rund went to Shands Hospital the following day to see J.V.

16. The two newest children were removed from Respondents' home. J.S., one of the original three children cared for by Respondents, was also removed from their home. The brothers J.V. and M.V. were returned to the Respondents on January 9, 1998, where they have remained. M.V. and J.V. were eventually adopted by the Respondents on May 22, 1998.

17. As Mrs. Rund acknowledges, she momentarily neglected the needs of J.V. when he fell from her automobile to the floor of the mechanic's shop. Her response to his needs beyond that point was not neglectful given the circumstances that have been described. She immediately arranged for his care and treatment. The failure to accompany J.V. to Shands Hospital was not neglectful.

18. Petitioner instituted an investigation identified as Abuse Report 98-001853, involving the incident on January 6, 1998, in which J.V. was injured when falling from the automobile to the floor of the repair shop. That report is referred to as institutional abuse-neglect, involving the conduct of Sherrie Rund and her foster home. Through the investigation, the report was verified for inadequate supervision or care pertaining to the accident, as well as the verification of other physical injuries associated with neglect.

19. Richard V. Perrone, Adoptions and Related Services Counselor for Petitioner, worked with the Respondents from March of 1997 through May of 1998 as an adoption counselor. In correspondence for the record, he indicates that he has seen the family, and the children in their care on a monthly basis and that the home was always appropriate and the children well cared for. In particular, Mrs. Rund was observed by Mr. Perrone to be active with children's care and appropriate services.

    Mr. Perrone notes the adoption of the children that he visited.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in accordance with Sections 120.569(1) and 120.57(1), Florida Statutes.

21. Respondents have held a foster care license issued by Petitioner. That license is subject to renewal on an annual basis. See Section 409.175(5). Florida Statutes.

22. In accordance with Section 409.175(8)(a) and (b)1, Florida Statutes, Petitioner may deny the pending renewal of the foster home license based upon a negligent act of a foster parent materially affecting the health or safety of children in the home. The evidence is persuasive that Sherrie Rund, a foster mother, was guilty of a negligent act that materially affected the health and safety of J.V., a foster child in her care who resided in her home. That neglect was in association with the

    incident on January 6, 1998, when the child fell from the mechanic's lift onto the floor of the shop injuring himself.

23. While a single negligent act of the nature of the incident described here may form the basis for denying license renewal, that outcome is not mandated. Mrs. Rund's negligent act was serious, but it is not sufficient reason to deny the relicensure when taking into account Mrs. Rund's response to the accident and the observations of the adoption counselor, Mr. Perrone, about the appropriateness of the home and the care the children were receiving in that home and the fact that J.V. and his brother were allowed to be adopted by the Runds, notwithstanding the incident in question.

24. Further, Petitioner refers to Rule 65C-13.006(3), Florida Administrative Code, as a means to deny renewal of the foster home license. That provision states:

    
    

    Section 409.175, F.S., stipulates that a license to care for children placed in the custody of the department or in the custody of a licensed child-placing agency is valid for not more than one year from the date of issuance. Relicensing is accomplished as follows:

    
    

    * * *

    
    

    (3) Prior to the issuance of a new license, the counselor must secure Abuse Registry and law enforcement clearance for all adults who reside in the home following the procedures outlines in this rule.

    
    

25. The above reference to the abuse registry and the need

to secure clearance from administrative violations may not form the basis for license denial. Sections 409.175(2)(k) and 435.04, Florida Statutes, related to personnel screening together with Part IV, Chapter 415, Florida Statutes, related to the child abuse hot line do not create the opportunity to deny license renewal for the foster home based upon Mrs. Rund's neglect of J.V.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That the foster home license held by Christopher Rund and Sherrie Rund be renewed.

DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 29th day of October, 1998.

COPIES FURNISHED:

Joseph Sowell, Esquire Department of Children

and Family Services Post Office Box 220

Sumterville, Florida 33585

Christopher Rund Sherrie Rund

13059 East Shawnee Trail Inverness, Florida 34450

John S. Slye, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk 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: 98-001739

Orders for Case No: 98-001739