STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 99-0506

)

WENDY and DAVID PALMER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 31, 1999, in Tavares, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158

For Respondents: John N. Spivey, Esquire

14550 U. S. Highway 441

Tavares, Florida 32778 STATEMENT OF THE ISSUE

The issue is whether Respondents' foster home license should be revoked because of inadequate supervision of foster children, as alleged in Petitioner's letter dated December 22, 1998.

PRELIMINARY STATEMENT

This matter began on December 22, 1998, when Petitioner, Department of Children and Family Services, issued a letter advising Respondents, Wendy and David Palmer, that their foster home license was being "revoked effective immediately because of a verified report of inadequate supervision." Respondents then requested a formal hearing under Section 120.569, Florida Statutes, to contest the proposed action.

The matter was referred by Petitioner to the Division of Administrative Hearings on February 3, 1999, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated February 17, 1999, a final hearing was scheduled on March 31, 1999, in Tavares, Florida.

At final hearing, Petitioner presented the testimony of Pamela Paulik, District 13 administrator, and Diane Graham, a family services specialist. Also, it offered Petitioner's Composite Exhibit 1, which was received in evidence. Respondent Wendy Palmer testified on her own behalf and Respondents jointly presented the testimony of Douglas Odell Foster, chief of police for the City of Umatilla; E. H. Branton, Lake County deputy sheriff; Thomas B. Stonebraker, II, supervisor of placement and assessment for the Lake County Boys Ranch; Rhoda Williams, a supervisor with the Lake County Boys Ranch and accepted as an expert in protective investigations; Marilyn Hamilton, licensing coordinator for the Lake County Boys Ranch; Pamela Ann Williams,

a case manager for the Lake County Boys Ranch; and J. N. K., the daughter of Respondents. Also, they offered Respondents' Exhibits 1-3, which were received in evidence.

The Transcript of the hearing was filed on April 14, 1999.

By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to May 19, 1999. The same were timely filed by the parties, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this proceeding, Petitioner, Department of Children and Family Services (DCFS), seeks to revoke the foster home license of Respondents, Wendy and David Palmer. In a letter dated December 22, 1998, DCFS alleged that Respondents allowed "foster children to be taken overnight over one hundred miles from [their] home with no supervision from [Respondents] as the licensed foster parents." The charging document went on to allege that their "neglect materially affected the safety and welfare of the children because they were given alcoholic beverages and were allowed to sleep with men." Respondents denied the allegations and requested a formal hearing to contest the proposed action. Their license has remained inoperative pending the outcome of this proceeding.

2. Respondents have operated a foster home around six miles north of Altoona, Florida, since May 1994, caring mainly for teenage females who had "a lot of behavior problems" and had failed in prior placements. The home is licensed by DCFS under Section 409.175, Florida Statutes. Children were placed in their home by the Lake County Boys Ranch, a private organization which had a contract with DCFS to provide that service.

3. On an undisclosed date, but prior to August 1998, three females, M. G., G. M., and D. W., were placed in Respondents' home. At that time, each of the girls was around fifteen years of age. G. M. had almost fifty prior placements, while D. W. had failed in "several" other placements. M. G. had also been in a number of "non-relative" placements, but the exact number is unknown. All three had a reputation of being difficult to handle and were considered "high-risk." None testified at the final hearing and thus any comments they may have made to a DCFS investigator are hearsay in nature.

4. Respondents' daughter, Jamie, who was 21 years old when the events herein occurred, had been approved to serve as a respite provider at the foster home. This meant she could assist her parents by transporting the children to medical or visitation appointments and provide supervision in the home for a limited period of time. Examples of her duties included transporting the three girls to doctor's appointments, to lunch, or to the beach

   for recreational purposes. She considered her relationship with the girls to be "like sisters."

5. On August 3, 1998, Jamie decided to travel to Hampton in Bradford County, Florida, in an extended cab pick-up truck to retrieve the remainder of her personal belongings from the residence of her former boyfriend, Scott, a 22-year-old male. Hampton is approximately 83 miles from Altoona, but the distance between the foster home and Scott's residence was no more than

   75 miles or so. The one-way trip less took less than an hour and a half.

6. Jamie spoke with her mother around 10:30 or 11:00 a.m. that day and received permission for the three girls to accompany her on the trip. The trip was perceived by Wendy Palmer as a recreational trip, and one that would enable the girls to build trust in the family since it allowed them to take a short trip away from their home and to return later that same day. Contrary to the charging document, this was not an illegitimate purpose, and Respondents' authorization of the trip at that point in time could not reasonably be forseen as an act which would materially affect the girls' health or welfare. Jamie was told to go straight to Hampton, pack her belongings, and then return. Jamie eventually departed the foster home between 2:00 p.m. and

   2:30 p.m. and arrived at Scott's residence shortly before 4:00 p.m.

7. Although Scott was not at home when the group first arrived, he returned shortly thereafter with "two buddies," both adult males. A verbal argument between Scott and Jamie ensued, and Scott remained at the residence for several hours while the two discussed why their relationship had gone sour. Scott's two friends, however, remained outside the residence by his truck.

8. Just before 6:00 p.m. Jamie telephoned her mother to advise that she had safely arrived in Hampton, that she was packing, that Scott was on the premises attempting to change her mind about leaving him, and that it looked like it was going to rain. Scott and his friends left a few minutes later, and even though Scott had a key to the residence, he and his friends did not return that evening.

9. Before 9:00 p.m., Jamie again telephoned her mother to advise that it was storming, that she was upset after arguing with Scott, and that she was afraid to drive home in rainy weather at that hour with the girls. Accordingly, she asked permission to remain at Scott's residence that evening and drive home the first thing in the morning. Although Scott's residence was not a licensed, inspected, and approved foster home, Wendy Palmer agreed that under those extenuating circumstances, it was appropriate to remain in Hampton overnight. Wendy Palmer added that she would have driven to Hampton herself to retrieve the girls, but she did not wish to drive on two-lane roads in the rain at that late hour.

10. Wendy Palmer's decision that evening technically violated her duty as a foster parent to provide round-the-clock supervision for the girls in a licensed foster home. Indeed, without the order of a court, foster children are not allowed to stay in an unlicensed home.

11. After talking with her mother, Jamie drove to a local convenience store and purchased two Bud Lights in a can. She returned to the residence and consumed them herself. Contrary to the allegations in DCFS's letter dated December 22, 1998, the girls were not given alcoholic beverages. Also, Jamie did not allow adult males to enter the premises that evening. Further, they did not engage in sexual relations with other men. Indeed, except for the girls and Jamie, there was no one else present, and all four slept in the living room of the residence. Although Jamie allowed the three girls to smoke that evening, this conduct is not cited as a ground for revocation in the charging document.

12. The next morning, Jamie telephoned her mother a third time and advised that they were getting ready to drive back to Altoona. The group returned a short time later.

13. On October 9, 1998, or some two months later, the three girls ran away from the foster home and were eventually picked up by law enforcement authorities in Wildwood, Florida. At that time, D. W. made allegations for the first time that while in Hampton on the evening of August 3, 1998, the group had been given alcoholic beverages by Jamie, that they had engaged in

    sexual intercourse with friends of Scott, and that Jamie had become intoxicated. These allegations led to an investigation by DCFS and its decision to revoke Respondents' foster home license. They also resulted in a verified report of institutional neglect on November 2, 1998, which is found in abuse report 98-113392.

14. DCFS takes the position that the trip had no legitimate purpose because the girls would receive no discernible benefit from the trip. This assertion has been rejected above. It further contends that the teenagers were placed at risk when Respondents allowed the girls to stay overnight with a respite worker in an unlicensed home. According to DCFS, the appropriate action would have been for the Palmers to advise Jamie to transport the girls to a "public shelter" in the area, or alternatively, for the Palmers to drive to Hampton that evening and pick them up. Because these latter steps were not followed, Respondents violated DCFS protocol, and they committed a negligent act within the meaning of the statute.

15. During the four-year period in which Respondents served as foster parents, they provided outstanding care for foster children who were most at-risk, and all of whom had failed in prior placements. Other than this one incident, there are no blemishes on their record. Moreover, they have the continuing support and confidence of the private agency which makes local placements of foster children pursuant to a contract with DCFS. These considerations, as well as the extenuating circumstances

    which occurred on the evening of August 3, 1998, should be taken into account in determining whether Respondents' license should be disciplined.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57, Florida Statutes (Supp. 1998).

17. In its proposed order, Petitioner suggests that it need only prove the allegations in the charging document by a preponderance of the evidence. It says this standard applies because a foster home license is distinguishable from other forms of DCFS and professional licenses. More specifically, DCFS points out that at its discretion, and without the need for any agency action, it can decline to place any children in a foster home, thus depriving the licensee of the ability to use its license; that unlike others, foster home licensees cannot hold themselves out to the public as providing services or products for profit; and that Respondents receive no pecuniary benefit from their license since all room and board payments must be used for the child. Citing Dep't of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 961, 967 (Fla. 1997), Respondents contend that the traditional burden of proof in license revocation proceedings applies, and like any other case, Petitioner must prove its allegations by clear and convincing evidence.

18. As Petitioner suggests, this proceeding does not implicate the loss of livelihood, and thus in that respect it differs from other license revocation proceedings. Cf. Ferris v. Turlington, 510 So. 2d 292, 295 (Fla. 1987)("[i]n a case where the proceedings implicate the loss of livelihood, an elevated standard [of proof] is necessary"). Notwithstanding this distinction, the DCFS itself has entered a string of final orders approving the clear and convincing evidence standard in foster home license revocation cases. See, e.g., DCFS v. Sylvia and Robert Mitchell, Case No. 97-5477 (DCFS, September 11, 1998); DCFS v. John and Janet Outerbridge, Case No. 97-4858 (DCFS,

    May 26, 1998); DCFS v. Jerome and Helen Winkfield, Case

    
    

    No. 96-2557 (DCFS, July 17, 1997); DHRS v. Jose and Emma Perez (DHRS, July 26, 1996). In the absence of any judicial precedent to the contrary, and a consistent line of agency precedent supporting Respondents' view, the undersigned declines to carve out an exception to this long-accepted rule. Accordingly, the clear and convincing standard will be used in evaluating the evidence. Cf. Coke v. Dep't of Children and Family Servs., 704 So. 2d 726 (Fla. 5th DCA 1998)(clear and convincing evidence required to revoke a day care facility license).

19. Section 409.175(8), Florida Statutes (Supp. 1998), reads in part as follows:

    (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

    the 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.

    
    

20. A report of institutional neglect is not a statutory ground for disciplining a license. See DCFS v. Christopher and Sherry Rund, (DCFS, Feb. 19, 1999). Rather, under the terms of the controlling statute, in order for suspension or revocation to lie, it must be independently established that Respondents committed an "intentional" or "negligent" act which "materially" affected the health or safety of the foster children. In this case, DCFS alleges that the Palmers committed a negligent act by allowing the girls to take an overnight trip to Hampton without Respondents' supervision, and that the girls' health and safety were then materially affected by Jamie's giving them alcoholic beverages, permitting adult males to access the premises, and allowing the girls "to sleep with men."

21. The more credible evidence shows that Jamie did not give the girls alcoholic beverages, permit adult males to access the premises, or allow the girls to sleep with men. Petitioner takes the position, however, that even if the foregoing allegations cannot be proven, Wendy Palmer's decision to allow the group to spend the night in an unlicensed home in Hampton under the care of a respite by itself is a sufficient reason to revoke the license under the statute.

22. By allowing the high-risk teens to spend the night in an unlicensed home in the care of a respite, and without a court order, it is concluded that Respondents committed a negligent act within the meaning of the statute. Further, because Scott had a key to the premises and could have entered at any time that evening, and the girls were free to leave at any time, the foster children were at risk of having their health and safety materially affected. Accordingly, it is concluded that the charges have been sustained.

23. While a single negligent act may form the basis for revoking a license, that outcome is not mandated here. Admittedly, the act was serious, but it is not so serious as to warrant the revocation of the license when taking into account the isolated nature of the act, the extenuating circumstances on the evening of August 3, 1998, and the outstanding record of the Palmers with foster children since 1994. Rather, a suspension of their license is clearly more appropriate in this case. Because the letter of December 22, 1998, had the effect of suspending Respondents' license pending the outcome of this proceeding, it is recommended that Respondents' license be suspended for one year from the date of the charging document, and that it be reinstated on December 22, 1999.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Children and Family Services enter a final order determining that Respondents violated Section 409.175(8)(a)1., Florida Statutes, and that their foster home license be suspended for one year effective December 22, 1998.

DONE AND ENTERED this 10th day of June, 1999, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 10th day of June, 1999.

COPIES FURNISHED:

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

John N. Spivey, Esquire 14550 U. S. Highway 441

Tavares, Florida 32778

Ralph J. McMurphy, Esquire Department of Children

and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Children and Family Services.

Docket for Case No: 99-000506

Orders for Case No: 99-000506