STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. )

) ROBERT HOLMES AND IRENE HOLMES, )

)

Respondents. )

Case No. 00-3536

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Diane Cleavinger, conducted a formal hearing in the above-styled case on October 6, 2000, in Inverness, Citrus County, Florida.

APPEARANCES

For Petitioner: Keith J. Ganobsik, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

For Respondent: Charles P. Vaughn, Esquire

120 North Seminole Avenue Inverness, Florida 34450-4125

STATEMENT OF THE ISSUE

The issue presented in this case is whether Respondents' foster home license should be revoked.

PRELIMINARY STATEMENT

Respondents, Robert Holmes and Irene Holmes (Respondents), received a letter dated August 11, 2000, from Petitioner, Department of Children and Family Services (Department), revoking Respondents' foster home license based on verified allegations of child abuse and neglect contained in Abuse Report No. 1999-128679. Respondents disputed the action proposed in the letter and requested a formal administrative hearing. The case was forwarded to the Division of Administrative hearings.

A formal hearing was begun on October 6, 2000. The Department presented the testimony of five witnesses and offered six exhibits into evidence. Respondent, Irene Holmes, testified in her own behalf; Respondents presented the testimony of seven witnesses. Respondents also offered two exhibits into evidence. The hearing was not concluded. A late-filed exhibit consisting of part of the record of a related dependency action on this matter was submitted by Respondents and admitted into evidence as Respondents' Exhibit No. 3.

By stipulation of both parties, to allow the testimony of five additional witnesses who were either ill or out-of-state, the record was held open and continuation of the hearing on October 6, 2000, was set for January 26, 2001. However, two of the Department's key witnesses had moved out-of-state but were anticipated to return to Florida in the summer. Therefore, the

hearing was continued and re-scheduled for July 10, 2001. Just prior to the July hearing, the Department learned that the two witnesses would not return to Florida and requested a continuance. Additionally, on July 7, 2001, the undersigned's father-in-law passed away and funeral proceedings were scheduled on July 10, 2001. A continuance was granted and the hearing was re-scheduled for October 30, 2001. Thereafter, the Department could not locate the two witnesses. Due to the continued unavailability of the witnesses, a telephone conference was held on October 29, 2001, and by mutual agreement, the Department and Respondents agreed to submit their proposed recommended orders without further hearing.

Respondent submitted a Proposed Recommended Order on November 27, 2001. The Department did not submit a proposed

recommended order.

FINDINGS OF FACT

1. Respondents were first licensed as a family foster home in April 1994.

2. As a result of Respondents' obtaining a foster home license, the Department put in their care: M.A1.A and M.Au.A, brother and sister; and, J.H. and L.H., brother and sister. M.Au.A was nine years old and her brother M.A1.A was eight years old. J.H. was eight years old and his sister, L.H., was five

   years old. J.H. and L.H. were later adopted by their foster parents, Robert and Irene Holmes.

3. J.H. was born September 2, 1991. He was, and is, a very troubled young man. Schizophrenia runs in his biological family and his mother abused chemicals during her pregnancy. He is diagnosed with Attention Deficit-Hyperactivity Disorder (ADHD) and has episodes of violence, aggression, unpredictability, poor impulse control, and agitation. He is likely to be pre-schizophrenic and, given his behavior, could develop full schizophrenia in the future. Even though only diagnosed with ADHD and in addition to stimulant medication prescribed for his ADHD, J.H. takes several psychotropic medications generally prescribed for manic and depressive behavior and other mood disorders. However, these drugs do not seem to fully control his behavior. Because of his aggression and severe behavior problems, J.H. has been involuntarily committed multiple times and has been repeatedly recommended for a residential, therapeutic foster home placement. Unfortunately, for various reasons, the Department has not provided J.H. a residential, therapeutic foster home placement.

4. On October 7, 1999, the Department received an allegation of abuse against Respondents. The allegation involved J.H. The allegations involved alleged favoritism of

   L.H. over J.H., abandoning J.H. with teachers, emotional abuse, and not wanting him in their home.

5. The Department's investigation, on very tenuous evidence, verified abuse for neglect - abandonment; neglect - failure to protect; abuse - other mental injury; neglect - inadequate supervision; and abuse - confinement/bizarre punishment. The report further found some indication of medical neglect and other physical injury-threatened harm. Because of the abuse report, the Department took L.H. and J.H. into shelter care on October 8, 1999, and filed a dependency action regarding J.H., Case No. 99-628-CJ. Additionally, based on the verified findings of the abuse report, the Department revoked Respondents' foster home license.

6. By Order of the Circuit Court dated July 12, 2000, the dependency action was dismissed for lack of evidence and an utter lack of co-operation by Department's personnel and witnesses during the dependency action. J.H. was returned to Respondents' home and has remained with them to date. L.H. was returned to Respondents' home sometime before her brother's dependency action was concluded.

7. Put simply, at the hearing, none of the allegations of the abuse report or facts supporting the verified findings were supported by the evidence since only uncorroborated hearsay was introduced at the hearing. Moreover, even though the evidence

   was hearsay, many of the allegations appeared from all the testimony to have been taken out of context and given meanings which were not warranted when their context was known.

   Significantly, the Department did not call J.H. to testify about any of these allegations.

8. To the contrary, the testimony of various witnesses indicated that Respondents did, in fact, keep a very neat, tidy, and orderly foster household and that J.H. was not abused or neglected. The evidence presented by Respondents and the testimony of their witnesses indicate that J.H. was provided a safe environment. The teachers provided temporary care during the period of time alleged to be when Respondents were neglecting J.H. by being out of town. The witnesses, including the teachers, stated that the plan was that they would care for

   J.H. until the return of Respondents. Furthermore, there was never any indication that the child was mistreated or neglected or left without care by Mrs. Holmes after returning from a wedding out-of-state. Finally, there was no evidence of noncompliance with any treatment plan, that the multiple involuntary commitments were in any way mentally abusive of J.H., or that the quiet times J.H. needed to calm himself were intended to be time-out punishment or were inappropriate or bizarre punishments of J.H. Because the allegations of abuse were not established, there is no basis on which to revoke

   Respondents' foster home license. Therefore, Respondents are entitled to their foster home license.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. Section 120.57, Florida Statutes.

10. The Department is the state agency responsible for licensing and regulating family foster homes. Section 409.17, Florida Statutes, setting the minimum qualifications for licensure and providing procedures to determine adherence to those minimum qualifications.

11. In 1998, Section 39.201(4)(e), Florida Statutes, was renumbered as subsection (6) and amended to state:

    (6) Information in the central abuse hotline may not be used for employment screening, except as provided in s. 39.202(2)(a) and (h). Information in the central abuse hotline and the department's automated abuse information system may be used by the department, its authorized agents or contract providers, the Department of Health, or county agencies as part of the licensure or registration process pursuant to ss. 402.301-402.319 and ss. 409.175- 409.176.

    
    

12. Sections 409.175 and 409.176, Florida Statutes (2000), deal with the licensure and registration of family foster homes. Section 409.175(1)(f) states:

    (f) "License" means "license" as defined in

    s. 120.52(9). A license under this section

    is issued to a family foster home or other facility and is not a professional license of any individual. Receipt of a license under this section shall not create a property right in the recipient. A license under this act is a public trust and a privilege, and is not an entitlement. This privilege must guide the finder of fact or trier of law at any administrative proceeding or court action initiated by the department.

    
    

13. It is clear from the statutory language that the Department may use the information it finds in the central abuse hotline in the licensure and re-licensure process for family foster homes. Abuse reports, by themselves, are not competent evidence in a revocation hearing. The facts underlying that report must be established in any hearing concerning revocation of a foster home license.

14. Section 409.175, Florida Statutes, provides in pertinent part:

    (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.

    
    

15. The issue in this case involves a revocation of Respondents' family foster home license. The Department has the

    burden of proof to establish by a preponderance of the evidence the basis for its action against Respondents. See Florida

    Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 415 (Fla. 4th DCA 1974).

16. In this case, the Department has failed to establish the allegations of abuse in this matter and/or a legitimate basis for revocation of Respondents' foster home license. The only evidence submitted by the Department was uncorroborated hearsay which cannot be used to make a finding of fact. See Chapter 120, Florida Statutes. Moreover, other evidence in the record, showed that Respondents were good and caring foster parents to J.H., who was a very troubled child and was not receiving the placement he needed from the Department. Therefore, Respondents are entitled to their foster home

license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department of Children and Family Services enter a final order not revoking Robert and Irene Holmes' family foster home license.

DONE AND ENTERED this 24th day of December, 2001, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 24th day of December, 2001.

COPIES FURNISHED:

Keith J. Ganobsik, Esquire Department of Children and

Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

Charles P. Vaughn, Esquire

120 North Seminole Avenue Inverness, Florida 34450-4125

Peggy Sanford, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

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: 00-003536

Orders for Case No: 00-003536