STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 99-5143

)

DENISE ELLIOT, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Largo, Florida, on March 14, 2000.

APPEARANCES

For Petitioner: Frank H. Nagatani

District Legal Counsel District Five

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630 For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of administering corporal punishment to one or more children in her care as a foster parent and, if so, what penalty should be imposed on her license to provide foster care.

PRELIMINARY STATEMENT

By letter dated September 24, 1999, Petitioner informed Respondent that it was commencing a proceeding to revoke her license to provide foster care due to a confirmed incident of abuse. Respondent timely requested a formal hearing.

At the hearing, Petitioner called three witnesses and offered into evidence three exhibits, which were all admitted.

Petitioner did not order a transcript.

FINDINGS OF FACT

1. In October 1991, Petitioner licensed Respondent to provide foster care. She operated a foster home continuously from that date through September 1999, when Petitioner closed the home for the reasons set forth below.

2. From time to time, prior to the incident in question, Petitioner required Respondent to obtain training as a foster parent. This training, which totaled at least 21 hours, covered discipline, among other topics.

3. At all material times, Petitioner has prohibited foster parents from administering corporal punishment to children in their care.

4. On two occasions, Petitioner investigated allegations that Respondent administered corporal punishment to one or more foster children in her care. On each of these occasions, in December 1992 and May 1993, Petitioner restated the policy against corporal punishment.

5. During 1999, Respondent administered corporal punishment to N. G., who was 11 years old, on over 10 occasions. Respondent used spatulas and switches to strike N. G. on the buttocks, feet, and front and back of thigh. On several occasions, the whippings left long welts on the skin of N. G.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

7. Section 409.175(8) provides:

   
   

   1. The department may deny, suspend, or revoke a license.

   2. 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.

      3. Noncompliance with the requirements for good moral character as specified in paragraph (4)(a).

      4. Failure to dismiss personnel found in noncompliance with requirements for good moral character.

8. Rule 65C-13.010(1)(b)5.f prohibits the use of corporal punishment on foster children by their foster parents.

9. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v.

   Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

10. Petitioner has proved that Respondent repeatedly used corporal punishment on at least one foster child in her care, despite her knowledge from past training and warnings that this form of discipline was prohibited.

RECOMMENDATION

It is

RECOMMENDED that the Department of Children and Family Services enter a final order revoking Respondent's license to provide foster care.

DONE AND ENTERED this 14th day of April, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 14th day of April, 2000.

COPIES FURNISHED:

Frank H. Nagatani District Legal Counsel District Five

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

Denise Elliot

1660 69th Avenue South

St. Petersburg, Florida 33712

Virginia Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-005143

Orders for Case No: 99-005143