STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEO AND CONNIE SMITH, )

)

Petitioners, )

)

vs. ) Case No. 00-1482

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 25, 2000, in Ocala, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Leo and Connie Smith, pro se

12134 County Road 684

Webster, Florida 33597

For Respondent: Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158

STATEMENT OF THE ISSUE

The issue is whether Petitioners' application for relicensing as a foster home should be approved.

PRELIMINARY STATEMENT

This matter began on October 8, 1999, when Respondent, Department of Children and Family Services, advised Petitioners,

Leo and Connie Smith, that their "home [would] not be relicensed as a foster home" on the ground that "the Department received a Florida Abuse Registry Hotline Information System Report" which "confirmed that while [they] were providing care to a child in [their] home, [they] spanked the child to the point where bruising occurred."

Petitioners disputed these allegations and requested a formal hearing under Section 120.569, Florida Statutes (1999), to contest the proposed action. The matter was referred by Respondent to the Division of Administrative Hearings on April 5, 2000, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated June 13, 1999, a final hearing was scheduled on October 25, 2000, in Ocala, Florida. On October 20, 2000, the case was transferred from Administrative Law Judge Don W. Davis to the undersigned.

At the final hearing, Petitioners testified on their own behalf and offered Petitioners' Exhibits 1-4. All exhibits were received in evidence. Respondent presented the testimony of Darnell Stewart, operations program administrator for foster care licensing. Also, it offered Respondent's Exhibits 1 and 2, which were received in evidence.

There is no transcript of the hearing. Proposed findings of fact and conclusions of law were due by November 9, 2000. None were filed by either party.

FINDINGS OF FACT

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

1. In this licensing dispute, Petitioners, Leo and Connie Smith (the Smiths), seek to have their foster care license renewed. In a preliminary decision rendered on October 8, 1999, Respondent, Department of Children and Family Services (Department), denied the request on the ground that Petitioners improperly used corporal punishment on a child under their care, and that the Department "cannot [be] assured that [Petitioners] will not lose control again and use excessive corporal punishment."

2. The underlying facts are relatively brief. Petitioners were first issued a therapeutic foster care license in September 1998. Thereafter, and until their application for renewal was denied, they used the license to care for two

   therapeutic foster children, a type of foster child that has far more severe emotional problems than a regular foster child.

3. On July 25, 1998, or before the license was issued, Connie Smith (Connie) was babysitting a two-year-old child in her home. When the child "messed in its pants" a second time after being previously warned not to do it again, Connie struck the child with a ruler which left bruises on the child's buttocks.

4. The incident was investigated by the Department and culminated in the issuance of an abuse report on October 9, 1998,

   which is identified as abuse report number 98-084291.

   
   

   Apparently, that report was not contested, for it remains a confirmed report in the abuse registry. Because the Department's background screening on the Smiths was completed in May 1998, or before the abuse incident occurred, the Department was unaware of the matter when it issued the license in September 1998.

5. The abuse report contains an admission by Connie to the mother of the child that "she had lost her temper with the baby" and struck him. At hearing, however, she denied that she "lost control" and maintained instead that the spanking was simply a form of discipline for the child. Even if Connie's version of events is accepted, the fact remains that the child was struck so hard that he suffered bruises on his buttocks.

6. Through accepted testimony presented at hearing, the Department expressed the concern that if Connie lost control supervising a normal two-year-old child, she would have far more difficulty with older children having severe emotional problems, such as therapeutic foster children. This is a legitimate concern, and Petitioners failed to demonstrate that this concern was not well-founded.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57 and 120.569, Florida Statutes (1999).

8. As the parties seeking renewal of their license, Petitioners bear the burden of showing entitlement to the license by a preponderance of the evidence.

9. Although the Department has not provided the specific legal theory under which the license has been denied, Section 409.175(8), Florida Statutes (1999), authorizes the Department to deny an application for a family foster home license if the home or its personnel are guilty of "[a]n intentional or negligent act materially affecting the health or safety of children in the home or agency."

10. Rule 63C-13.010(1)(b)5.f., Florida Administrative Code, provides that "the substitute care parents must not use corporal punishment of any kind." By using corporal punishment while serving as a substitute care parent, Connie violated the foregoing rule and thus committed an "intentional or negligent act materially affecting the health or safety of children in [her] home."

11. In light of the foregoing, the application should be denied. The issue of whether Petitioners' conduct is so egregious as to disqualify them for licensure to care for non- therapeutic foster children need not be reached at this time.

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 denying Petitioners' request for renewal of their foster care license.

DONE AND ENTERED this 21st day of November, 2000, 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 21st day of November, 2000.

COPIES FURNISHED:

Virginia A. Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Leo and Connie Smith 12134 County Road 684

Webster, Florida 33597

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 within 15 days to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will enter a final order in this case.

Docket for Case No: 00-001482

Orders for Case No: 00-001482