STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Petitioner,
vs.
NEDRA STREET,
Respondent.
)
)
)
)
)
) Case No. 01-0111
)
)
)
)
)
RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held before the Division of Administrative Hearings by its duly-assigned Administrative Law Judge, Ella Jane P. Davis, on May 31 - June 1, 2001, in Gainesville, Florida.
APPEARANCES
For Petitioner: Lucy Goddard, Esquire
Department of Children and Family Services Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390
For Respondent: William E. Davis, Esquire
1110 Northwest 6th Street Gainesville, Florida 32601
STATEMENT OF THE ISSUE
Whether the Department of Children and Family Services (DCF) may revoke Respondent's family foster home license for inflicting physical, oral, and emotional abuse on three foster children in her care, as more particularly stated in FAHIS
Report No. 2000-172767; intimidating the children to ask that visits with their parents be stopped; and having sufficient income, pursuant to Chapter 65C-13, Florida Statutes.
PRELIMINARY STATEMENT
At the commencement of the disputed-fact hearing, argument was heard on Respondent Nedra Street's oral motion to introduce the results of her polygraph examination, or alternatively, to present the testimony and conclusions of the polygraph examiner. The motion was denied.
This case involves several out-of-court statements of the minor children, Taleca (age 10), Michael (age six), and Yana (age four). Some of the children have different last names.
One child goes by a nickname. Different spellings of all the children's names appear in the various depositions and documents. For clarity and confidentiality, only one first/nickname or initial has been used consistently herein for each child.
The parties were advised in advance that any out-of-court statements by the children had to be individually assessed by the undersigned, pursuant to Section 90.803(23), Florida Statutes, before being admitted in evidence.
Taleca testified at hearing. The parties stipulated that Michael and Yana were unavailable to testify because
participation in the hearing would result in a substantial likelihood of severe emotional or mental harm.1
However, because of the agreed out-of-order presentation of several witnesses' testimony due to time constraints; because of the parties' stipulation that some transcribed depositions concerning early interviews of the children would be admitted without publication and only read and assessed in respect to Section 90.803(23), Florida Statutes, during preparation of this Recommended Order; and because it was stipulated to leave the record open for an after-filed deposition of the first child- interviewer, due to her emergency surgery and the parties' stipulation that any child victim hearsay statements in that after-filed deposition would be assessed in respect to Section 90.803 (23), Florida Statutes, in the course of this Recommended Order, the parties ultimately requested that all rulings with regard to Section 90.803(23), Florida Statutes, be reserved to be made within this Recommended Order. (TR-476-480),
At hearing, Petitioner presented the testimony of Taleca (live and by deposition transcript); Michael (by deposition transcript and VHS tape); Susan M. Pendrak (by deposition transcript), Linda Cox Ebbeling (by deposition transcript), Joe Barrera, Deanna Sheppard, Mary Anna Hovey, Ph.D., Barbara Brannen, and Benita Cooper (by after-filed deposition transcript).
Respondent testified on her own behalf and presented the oral testimony of Bertha Williams, Marinee Bowen, Eva Bradshaw, Deborah Alessi, Lynn Holston, M.S.W., Lizzy Jenkins, and Ethel Riley.
Respondent had two exhibits admitted in evidence.
By agreement, the record was left open for the deposition of Benita Cooper, which transcribed deposition was filed on July 13, 2001.
Petitioner had 12 exhibits, including depositions, plus the after-filed deposition, admitted in evidence.
The Transcript had been filed on June 26, 2001.
Both timely-filed Proposed Recommended Orders have been considered.
FINDINGS OF FACT
Insufficient Income
Respondent Nedra Street has held a Family Foster Home License since July 6, 1998. At the time she was licensed, DCF did not disqualify her application because she was between jobs. DCF was aware she was living on unemployment compensation and child support for her natural son, D.
DCF has no rule establishing strict economic parameters for foster home licensees. Its rule only requires that foster parents have sufficient income to absorb four to six weeks of a foster child's care until a board payment is received. This
requirement is to ensure that foster parents will not divert board payments for foster care children to their own needs and so that they will spend the board payments on the foster children entrusted to their care. So far as the testifying DCF supervisor knew, no foster care license ever has been revoked for insufficient income.
When Respondent was licensed, she was not required to submit a budget. No rule requires that an applicant or licensee submit a budget. However, DCF personnel currently requires that applicants submit a budget, and DCF reviews the applicant's stated income and expenditures. What formula, if any, DCF uses for this review was not disclosed. Because DCF has never asked Respondent for a budget, it has never analyzed her income and expenditures in any detail.
Respondent, with her elderly mother, own and live on a 60-acre farm. They support themselves by raising cattle, by growing timber for sale, and by leasing their peanut allotment. Their home, its contents, and real property are owned free and clear.
Respondent holds a B.S. degree in elementary education and is Florida-certified to teach elementary school. She also is a Certified Nursing Assistant and a Certified Medical Assistant. At all times material, she was working only part- time "as needed" in a delicatessen, so that she could devote
more time to her natural son and her foster children. As of the date of hearing, she was employed at Shands Medical Center.
Respondent successfully fostered six other children before the three children who are the focus of this case. There is no credible evidence that she short-changed DCF or any child as to food, clothing, or shelter. In making the foregoing finding, I have considered Taleca's deposition testimony that Respondent gave no food to the three children over any weekend, "No, never one of us," and find it not credible upon the evidence as a whole. Indeed, all other witnesses testified that at all times material Respondent fed the children adequately and kept Taleca, Michael, and Yana, clean, well-groomed, and well- dressed, either by purchasing their clothing new, or by receiving good quality clothing from one or another public or private source.
Oral and Emotional Abuse; Intimidating the Children to Ask that Visits With Their Parents Be Stopped
Foster parents are required to be supportive of the foster child's birth parents by not saying demeaning or degrading things about them to the child and by being supportive of the family of origin. At some times material, it was DCF's policy to urge contact between Taleca, Michael, and Yana and their natural parents and to work for ultimate reunion.
During the material period of time, Respondent and teachers reported to counselors that Taleca's, Michael's, and Yana's behavior changed for the worse and remained bad for as long as four days after each supervised visitation with their natural mother. At some point, Respondent urged DCF counselors and the school counselor, Lynne Holston, to stop the visitations.
While there was no proof that Respondent ever encouraged reunion of Taleca, Michael, and Yana with their natural mother or father, likewise, there was no credible or reliable evidence she ever demeaned the parents to the children. In making the foregoing finding, I have discounted as not credible Taleca's vague testimony concerning either inquiries or statements by Respondent about the natural parents' prior abuse of the children or failure to feed them.
Inflicting Physical Abuse on Taleca, Michael, or Yana
By rule, DCF prohibits foster parents from administering corporal punishment to foster children. Foster parents annually sign the disciplinary policy on this prohibition. Respondent received training prior to becoming a foster parent, which included this prohibition. She was clearly aware she was not permitted to use corporal punishment on foster children.
Foster children Yana (four years old), Michael (six years old) and Taleca (10 years old) are siblings who were placed in Respondent's family foster home on July 28, 1999. They remained in Respondent's care for more than a year until November 3, 2000, when they were removed by DCF as a result of allegations of physical abuse. When removed from Respondent's care in 2000, Taleca and Michael bore many scars and bruises, most of which would not normally have been seen under ordinary clothes, but some of which might be visible if the children were wearing shorts.
When placed with Respondent in 1999, all three children had been physically abused by one or both natural parents.
According to Advanced Registered Nurse Practitioner Linda Cox Ebbeling, Child Protection Team (CPT) records show referrals of Michael to DCF in 1995, when he was 17 months old and while he was still living with his natural mother, for his being hit in the face and head and for bruises from a metal- tipped belt, and later the same year for a broken arm.
All three children had one or more psychiatric issues to resolve when they were placed with Respondent in July, 1999.
Michael, particularly, was hyperactive, aggressive, and violent towards other children when placed with Respondent.
He was particularly violent toward his younger sister Yana, but as one counselor testified, "Yana was gaining on him quickly."
A kindergarten teacher described Michael as being unable to be touched without his jerking away when he first entered her class in August 1999, a few days after being placed with Respondent.
Lynne Holston, M.S.W., is a child therapist of 23 years' experience and a registered play therapist. Taleca relied on Ms. Halston for comfort and moral support during her testimony at hearing.
Ms. Holston worked regularly with Respondent and the three children at Joyce Bullock Elementary School from the end of September 1999 until August 2000. She found Respondent responsive to her suggestions and proactive in getting all the necessary assessments (medical, psychological, and educational) necessary so that Michael could qualify for an appropriate Individual Education Plan (IEP) suitable for his special needs. Respondent also sat in class with him to calm him down when he had bad days.
Nothing in the children's interactions with each other, herself, or Respondent suggested to Ms. Holston that Respondent was abusing any of the three children. She inquired approximately every six weeks if anyone had touched them uncomfortably, and both Taleca and Michael answered in the
negative each time. During this time, she never saw fresh wounds on Taleca and saw only one fresh wound on Michael. That wound was traced to a child-on-child encounter when Michael was hit on the head with a brick by another boy.
Michael was impulsive, unfocused, agitated, over- anxious, and had many school incident reports during the 1999- 2000 school year. Whether these reports always involved violence is unclear, but many did.
Through Respondent's persistence, Michael was diagnosed with attention deficit/hyperactivity disorder (ADHD) and medicated. His behavior improved.
At some point, Yana also became subject to legitimately prescribed behavior-modifying medication.
Over time, all three of the children's aggressive and traumatized play, which Ms. Holston related to the birth mother, became more organized and resolved.
In November 1999, DCF investigated a complaint that Respondent had slapped Michael in the face. Initially, Taleca stated that the slapping incident had taken place. At that time, various parts of Michael's body were photographed for a CPT medical examination, but the photographs do not show all the body parts that became an issue in the instant case arising in November 2000. Some scarring on his buttocks and at least one bruise was found on Michael's left lateral thigh in 1999, which
marks corresponded to two of twelve marks found in November 2000, see infra. The 1999 case was closed as unfounded and the children were returned to Respondent's care. Apparently, one reason for the "unfounded" classification was that Michael and Taleca recanted.
According to Ms. Holston, in November 1999, supervised visitation with the natural parents also was suspended because the children were recovering memories of abuse by the natural parents and did not want to see the birth mother. Ms. Holston personally observed a cross-examination of Michael by his natural mother at about this time concerning the DCF investigation into whether or not Respondent had slapped Michael. Ms. Holston felt the mother's examination was upsetting and frightening to Michael.
Michael's deportment improved further after he was assigned to a self-contained ESE classroom in approximately August 2000.
Taleca and Michael were honor roll students by the 2000-2001 school year.
On March 27, 2000, a DCF counselor interviewed Taleca, Michael, and Yana at school, outside Respondent's presence, and reported no marks, bruises, physical indicators, or statements of abuse. DCF Counselor Deanna Sheppard interviewed them in the same manner on August 10, 2000, and October 31, 2000, three days
before DCF's removal of them from Respondent's home. Ms. Sheppard also detected no marks, bruises, physical indicators, or statements of abuse.
Many ordinary, prudent, and credible witnesses, who had observed and known Respondent and the children professionally and personally over varying periods of time, uniformly expressed their belief that Respondent had been a good foster parent and testified that they had observed no marks on the children or abuse by the Respondent.
Michael had bonded with his kindergarten teacher who had maintained weekly, but not private, contact with him into the 2000-2001 school year. Michael never told her of any abuse by anyone. She has reported abuse of other children in the past, but she noticed no evidence that Michael was abused.
It is undisputed that sometime on October 31, 2000, Yana sustained several first and second degree burns on her neck and chin from one or both of Respondent's two curling irons. What is disputed is how the burning occurred, whether Respondent inflicted the burns, and whether Respondent was justified in her failure to report the incident to DCF.
On November 3, 2000, Benita Cooper, Child Protective Investigator (CPI), responded to an abuse hotline complaint naming Yana as a victim, and went to the children's school. Her
interviews with all three children on that day are deemed reliable hearsay.2
At the school, Ms. Cooper interviewed Yana separately and privately, using open-ended questions. In response to
Ms. Cooper's question of "What happened?" Yana told her that she had been beaten with a spoon. Yana made no statement whatsoever about her burns.
During this interview, Ms. Cooper also observed marks on Yana's arm, elbow, back, under her chin, and on the back of her neck. Ms. Cooper considered the neck wounds and some other marks fresh. She considered still other marks to be old, but she did not date the marks.
In Ms. Cooper's opinion, Yana's neck injuries were all ones a foster parent is expected to report. In Ms. Brannen's, the DCF District Supervisor of Foster Home Licensing's, opinion, it is unclear whether a foster parent is required to report an injury of this kind when they are capable of treating it medically.
Ms. Cooper also questioned Taleca and Michael separately and privately at their school. They were reluctant to talk to her and denied they had been hit, denied being disciplined at home, or knowing anything about Yana's injuries. It is recognized that children often do not report on-going abuse at the first opportunity.
Deanna Sheppard had become DCF Foster Care Counselor for Taleca, Michael, and Yana as of June 2000, but she had not seen them except as noted above and had developed no particular rapport with them. Her recitation of hearsay statements of the children on November 3 and 4, 2000, have been considered, pursuant to Section 90.803(23), Florida Statutes, and found reliable.3 Accordingly, it is found that on November 3, prior to her CPT physical examination, Yana stated, under reasonably reliable circumstances, that "Mama was doing my hair and burned me with the curling iron," and that "Mama whooped me with a spoon." Ms. Sheppard understood her to be referring to Respondent.
Advanced Registered Nurse Practitioner Susan Pendrak examined Yana on November 3, 2000. Advanced Registered Nurse Practitioner Linda Cox Ebbeling examined Taleca and Michael on November 4, 2000. Both women are qualified by education, training, and experience to render expert nursing opinions. The fact that their opinions with regard to the wounds of the children that they examined were couched in terms of "reasonable medical certainty" is not disqualifying, as the undersigned has accepted their opinions as being given only within their expertise of nursing.
Nurse Pendrak's findings with regard to Yana's wounds on November 3, 2000, were that the hyper-pigmented linear marks
on Yana's neck, arm, and hand were consistent with burns from a curling iron. She believed those on the neck had been inflicted by another person and were not accidental because of the location, pattern, and number of burns. She did not believe that any burns could have been inflicted accidentally due to the location, pattern, and number of burns, and further stated that if a sibling had done it, Yana could have gotten away. However, there were no marks on Yana clearly showing she had been held by an adult. Therefore, an accident cannot be ruled out.
In the context of Yana's November 3, 2000, examination by Nurse Pendrak, which I find constituted reliable circumstances under Section 90.803(23), Florida Statutes, Yana repeatedly told Nurse Pendrak that "my momma whooped me" with a "whooping spoon," which Yana described as black and wooden, and with a "whooping" stick. Yana stated she did not want to go "to my momma's house." She made no statements about the burns. Nurse Pendrak concluded that Yana was referring to her foster mom, Respondent. 4
After Yana's examination, Ms. Sheppard transported all three children to the Trenton DCF Office where they were interviewed by Bonnie Robinson, a Child Protection Investigator, while Ms. Sheppard took notes. Ms. Sheppard's recitation of hearsay statements of the children has been considered, pursuant to Section 90.803(23), Florida Statutes, and found reliable.5
At the Trenton Office, Bonnie Robinson interviewed each of the children separately while Ms. Sheppard took notes. Ms. Sheppard seems a little vague about whether or not Yana said, at this interview, that she was burned by her Mama, but is clear that she identified Respondent as the one who had "whooped [her] with a spoon." She is also clear that Michael stated he had been whipped on his feet, hands, and butt, with a black spoon and a brown and gray stick and that Taleca said she had been whipped with a black spoon with tape on the handle, a stick or paddle, and an "x" belt, and that these items were kept in Respondent's nightstand. Each of the children identified Respondent's bedroom by colors.
Deputy Sheriff Joe Barrera accompanied Bonnie Robinson and Ms. Sheppard to Respondent's home on the evening of
November 3, 2000. Taleca, Michael, and Yana were not present in the home, but D., Respondent's natural son, was present.
Respondent denied ever seeing the scars on Taleca and Michael in photographs she was shown because the scars were under their clothes and she did not bathe them.6 With regard to photographs of Yana's burns, she stated that Yana burned herself with the curling irons while Respondent was in the restroom. She denied ever hitting any of the children.
Deputy Barrera seized a large, black, plastic serving spoon, with the handle wrapped in gray duct tape and a hole in
the handle for hanging it, and a paint stirrer in natural wood with red lettering on it from the bottom drawer of Respondent's bedside night stand.7
At hearing, Taleca testified that this was not the spoon with which Respondent beat her, but she recognized the stirrer which she called a "paddle." Respondent testified this was a spoon reserved for feeding the dog, and the children had hit each other with it. Respondent's testimony on the spoon as the children's weapon is not credible, and she did not explain the stirrer.
On Saturday, November 4, 2000, after the three children had spent the night together in an emergency shelter, Deanna Sheppard picked up Taleca and Michael for their CPT medical examination by Nurse Linda Cox Ebbeling.
In the context of her examination of him, Nurse Ebbeling asked Michael about twelve marks on his body. This procedure constituted reliable conditions under Section 90.803(23), Florida Statutes.8 Michael could give no history about the cause of many of his scars, and this is reasonable in light of his age and the number of times he must have been scarred even by his own hyperactivity. Due to Michael's inability to give a history for many of his injuries, Nurse Ebbeling leaned toward an opinion that he "could have" been abused, as opposed to clearly opining that he had been abused.
Nonetheless, she related that Michael attributed two of the marks on his body to being hit by Respondent with a black spoon and a switch, and in her professional opinion, these two marks had been, in fact, inflicted. Michael stated that another one of the marks was from his "old mom," as distinguished from Respondent. Michael also stated that Respondent slammed him against the wall and used a stick or switch to hit his hands, butt, and the bottoms of his feet. He stated that he had seen Respondent hit his two sisters, but he did not relate that Respondent had jumped on him.
Nurse Ebbeling did not professionally confirm that Michael had been slammed against a wall or jumped upon. She eliminated the disparities on Michael's feet from being bruises or inflicted wounds, as conjectured by other witnesses, and attributed them to Michael simply having a different skin texture in that area. Several other marks on Michael's body looked inflicted to her, but she could not rule out accidental injury. Overall, Michael evidenced multiple healed and healing lesions, some of which were consistent with his telling her they had been inflicted by Respondent. Michael's healed lesions could not be placed as having occurred before he went to live with Respondent or placed during the year and a-half he had lived with her.
In the context of her examination of Taleca on November 4, 2000, which I find constituted reliable circumstances under Section 90.803(23), Florida Statutes,9 Nurse Ebbeling determined that the multiple curvilinear lesions and hyper-pigmented lesions on Taleca's right hip and back shoulder area were consistent with Taleca's statements that Respondent had hit her on her hip and back with a black spoon, but that Taleca did not have an explanation for several other marks on her body. Taleca's other allegations at that time of Respondent stomping on her and banging her head into things were not verified by the nurse.
Taleca and Michael were deposed January 30, 2001.
These depositions are fully in evidence and have been considered in their entirety, as if the testimony therein had been given at hearing.10
At the time of Taleca's and Michael's January 30, 2001, depositions, the three children were residing with foster care mother, Ethel Riley. Ms. Riley has successfully fostered 30-40 children since 1994.
After the children's depositions and about two weeks before February 26, 2001, Ms. Riley overheard Michael state to Taleca, during a squabble, "Ms. Street didn't burn Yana's neck. Yana burned her own self." Ms. Riley attempted to report this conversation to Ms. Sheppard and was rebuffed. This hearsay
statement also is considered reliable pursuant to Section 90.803(23), Florida Statutes.11
On or about February 26, 2001, after Michael had become uncontrollable at school, a complaint was called in to the abuse hotline about Ms. Riley abusing the three children involved in the present case. Taleca and Michael gave statements that they had been paddled by Ms. Riley with a board. No CPT investigation of this incident occurred and Ms. Sheppard simply removed the children to another foster home, apparently on the theory that there had been "inappropriate" corporal punishment but not abuse. Another hotline complaint, alleging Ms. Riley had locked Yana in her garage, was investigated the next day. Apparently, this report was listed as unfounded, because Ms. Riley is still licensed. Ms. Riley credibly denied abusing any children and stated that her garage is, in fact, a recreational room for the children. She noted that two weeks before Taleca and Michael accused her of paddling them, she had signed a form permitting school officials to paddle Michael instead of suspending him.
Mary Anna Hovey holds a Ph.D. in clinical psychology and sociology and is a Florida-licensed clinical psychologist with at least 17 years of experience with children. Dr. Hovey is qualified by education, training, and experience to give expert testimony in the field of child psychology. She
interviewed Taleca, Michael, and Yana in March 2001, four months after the children were removed from Respondent's home. She spent approximately three and a-half hours with each child separately. Appropriately under the case law, Dr. Hovey did not comment on the credibility of the child witnesses or their hearsay statements, but her expertise has been considered in assessing the reliability of the child-hearsay statements, the children's deposition testimony, and Taleca's live testimony.
Specifically, it has been considered in relation to each child's respective consistency or inconsistency with the psychological "affect" of abused children versus children who have been coached, who concoct stories, or who fantasize.
The corroborative evidence for each child's hearsay statements under Section 90.803(23), Florida Statutes, are the photographs of the children's respective wounds, the nursing evidence of causality and dating of the wounds, and the fact that a spoon and stirrer matching the children's general descriptions were found in complete accord with the children's statements.
Having fulfilled all statutory requirements for determining that the hearsay statements are admissible and may be considered, the evidence as a whole must be considered and weighed.
Michael's videotape deposition, like Taleca's live testimony, allowed assessment of each child's credibility based on candor, demeanor, and consistency in a confrontational legal setting. Taleca's testimony, live and by deposition, and Michael's video deposition testimony are generally consistent with their respective prior hearsay statements concerning being hit with a black spoon or small stick or paddle by Respondent, and the reasons therefore (bad grades, bad behavior, and failed farm chores) but they differ significantly and implausibly on other matters. Those other allegations are rejected.12
Based on Taleca's and Michael's candor and demeanor while testifying; the expert evidence that abused children may exaggerate or add more severe details with the intent of persuading adults that a smaller, but real, abuse actually occurred; several prior inconsistent or incomplete statements of the respective children closer in time to the actual events and another statement made while at Ms. Riley's house, I find that the only credible parts of these children's testimony is that they were beaten by Respondent with a spoon and/or a small paddle, like the paint stirrer, and I make this finding primarily because the children were immediately able to direct investigators to a spoon and a paint stirrer reasonably matching their descriptions, and these items, according to competent nursing opinion, matched some of the marks on each child.
Taleca's denial at hearing that the spoon located in Respondent's nightstand was the same spoon used by Respondent to beat her does not undermine her credibility in light of her recognizing the paint stirrer as a "paddle."
The fact that Taleca and Michael have subsequently accused Ms. Riley of paddling them suggests a developing pattern of attacking foster parents, but does not undermine the fact that in Respondent's case, both children could direct investigators to the specific striking implements or the fact that Michael was able to distinguish marks made on him by his "old mom" from those made by Respondent.
As to Taleca's live and deposition testimony that Respondent intentionally burned Yana with a curling iron, I detect a desire to please whichever attorney was asking the question and to embellish so as to fill in parts of events about which she did not know. She admitted several times that she did not see Respondent intentionally burn Yana with a curling iron and the gist of her testimony is that she assumed that Respondent intentionally burned Yana, because often when Yana wiggled while the curling process was going on, Respondent said something like, "If you don't hold still, I will burn you." Taleca assumed the comment was a threat which was ultimately carried-out, while Respondent's statement may just as clearly
have constituted a warning. Taleca's history of prior child abuse probably precludes her inferring an innocent motive.
Respondent testified credibly that on October 31, 2000, she had intended to take Yana to a Halloween party at school after driving to a neighboring town to see her mother, who had been in and out of the hospital twice within the last few days due to complications of a heart attack. However, Yana had "the runs," so she had taken her home. The two curling irons Respondent used for herself and the girls in the morning had been plugged in all day because Respondent had forgotten to unplug them, and after the older children came home, while Respondent was in the shower, Yana was burned with the curling irons. Respondent suspected that Michael might have done it or Yana had done it herself. Respondent did not report the burns to DCF because the children's counselor, Ms. Sheppard, did not have a pager and had not given her an after-hours phone number, and also because between October 31 and November 3, 2000, Respondent's mother was in and out of the hospital twice more.
The two Advanced Registered Nurse Practitioners testified that Respondent correctly treated Yana's neck burns with Neosporin. Both Advanced Registered Nurse Practitioners agreed that leaving the burns open to the air after applying Neosporin would have been appropriate, or if there were a chance dirt would get in the wounds when Yana went to school, it would
have been appropriate to cover them with clean, sterile gauze. One nursing witness testified that a band-aid would be a sufficient covering, provided the gauze fully covered the burned area. Letting the sticky part of the band-aid touch the burned area would not be appropriate.
Respondent used a regular-sized band-aid on the largest of the burn wounds on November 3, 2000, when she sent Yana to school. Later in the day, Mesdames Cooper, Sheppard, and Pendrak found that the sticky part of the band-aid had come in contact with the wound.
Yana's out-of-court statements, while found individually reliable in terms of Section 90.803 (23), Florida Statutes, are not fully credible. The evidence as a whole, specifically Respondent's compelling and credible direct refutation of Yana's version of events and Michael's out-of- court statement overheard by Ms. Riley, are persuasive that Yana did not consistently relate Respondent to her burns because the burns were her own fault. Nurse Pendrak's testimony that the pattern of the curling iron burns is only consistent with abuse is not persuasive, since she cannot rule out Yana's involvement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause,
pursuant to Section 120.57(1) and Chapter 400, Part III, Florida Statutes.
DCF's duty to go forward and the burden of proof in this cause of license revocation is only by a preponderance of the evidence, which is an exceedingly slim margin.
Section 409.175(1)(e), Florida Statutes (2000), states:
"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.
Rule 65C-13.011, Florida Administrative Code--Minimum Standards for Licensure of Family Foster Homes, Family Emergency Shelter Homes and Family Group Homes, states in part:
(4) Income. Substitute care parents must have sufficient income to assure their stability and the security of their own family without relying on board payments. The substitute family must have sufficient income to absorb four to six weeks of a foster child's care until a board payment is received.
For the reasons set forth in Findings of Fact 1 through 9, DCF has failed to prove the children were intimidated
by Respondent to ask that visitation with the parents of origin be ended and has failed to prove that Respondent has insufficient income to qualify as a foster parent.
Section 409.175(8)(a) and (b), Florida Statutes (2000), states, in part:
The department may deny, suspend or revoke a license.
Any of the following actions by a home or agency or its personnel is a ground for denial, suspension or revocation of a license:
An intentional or negligent act materially affecting the health or safety of children in the home or agency.
A violation of the provisions of this section or of licensing rules promulgated pursuant to this section.
Rule 65C-13.010, Florida Administrative Code-- Substitute Care Parent's Role as a Team Member, states in part:
(1) Responsibilities of the Substitute Parent to the Child.
(b) Family Care Activities.
5. Discipline.
f. The substitute care parents must not use corporal punishment of any kind.
(4) Responsibilities of the Substitute Care Parents to the Department.
(j) The substitute care parents must notify the department immediately of illness or accidents involving the child.
On the issue of physical abuse, the children's hearsay statements first must be assessed for reliability.
Section 90.803(23), Florida Statutes (2000), states:
(23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.
Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of
11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the
child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and
The child either:
Testifies; or
Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s.90.804(1).
In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which
qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child's statement, the time at which the statement was made the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.
It was stipulated that Michael, six, and Yana, four, were "unavailable" to testify because their participation in the disputed-fact hearing would result in a substantial likelihood of severe emotional or mental harm. Taleca testified at the disputed-fact hearing. Michael's deposition constituted his testimony at hearing. The foregoing satisfies the first element of the test required under Section 90.803 (23), Florida Statutes, for the admission of child victim hearsay statements.
The statute requires specific findings of fact that the content and circumstances of each child hearsay statement provide sufficient safeguards of reliability. The Florida Supreme Court in State v. Townsend, 635 So. 2d 949 (Fla. 1994), has directed that two specific reliability requirements are necessary: (1) the source of the information through which the statement was reported must indicate trustworthiness, and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of
reliability. That case goes on to direct that each statement must first be determined to be reliable without regard to corroborating evidence, and if the statement is considered reliable, only then may it be determined if there is corroborative evidence. In determining reliability, the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate may be considered. Other factors may include, but are not limited to the statement's spontaneity; whether the statement was made at the first opportunity; whether the statement was elicited in response to questions from adults; the mental state of the child when the abuse was reported; whether the statement consisted of a child-like description of the act; whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement, the ability of the child to distinguish between reality and fantasy; the vagueness of the accusations; the possibility of any improper influence on the child by participants involved in a domestic dispute; and contradictions in the accusation. Naturally, every factor will not be applicable to every statement.
The foregoing factors have been considered and specific findings with regard to the reliability of each statement have been made as footnotes within the Findings of Fact.
Once reliability has been determined for purposes of admissibility of child-hearsay statements, those statements still must be analyzed and weighed as only part of the evidence as a whole. That also has been done in the Findings of Fact.
It cannot be concluded that Respondent intentionally or accidentally burned Yana with the curling iron. Her treatment of the burns was reasonable. Her failure to report the burns to DCF under the circumstances was excusable.
There is a preponderance of the evidence that Respondent administered unauthorized corporal punishment.
RECOMMENDATION
Upon the foregoing findings of fact and conclusions of law, it is
RECOMMENDED
That the Department of Children and Family Services enter its final order, revoking Respondent's family foster home license.
DONE AND ENTERED this 4th day of October, 2001, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
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 4th day of October, 2001.
ENDNOTES
1/ This stipulation satisfies the first "prong" of the test outlined in Section 90.803(23), Florida Statutes, for admission of child victim hearsay.
2/ Ms. Cooper has conducted over 400 such interviews and is a reliable source or conduit. Her questions were open-ended.
Yana did not evidence any aspects of fabrication, elaboration, volunteerism, or coaching. She was separated from any influences by the natural mother, the other children, or Respondent. She used age-appropriate terminologies. She had not seen her natural mother for 12 months and it had been 12 months, since she had initially recovered memories of her natural mother's abuse. She has no prior or subsequent history
of unreliable statements. It is recognized that children often do not report on-going abuse at the first opportunity, but since this was her first interview after an unusual event, it was probably the most accurate of her statements.
3/ Ms. Sheppard was not certified in child protection at this point, but her questions were sufficiently non-pejorative.
Yana's statements were made before she had a chance to "consult" Taleca and Michael. Except that it was the second interview, all other circumstances supporting reliability are the same as in n.2.
4/ This examination was by a specially-trained CPT nurse who is a reliable conduit for the statement. The timing and clinical circumstances of the examination, open-ended questions, and separation of Yana from the other children were in aid of reliability. All concerns as to recovered memory or contact with the natural mother are as in n.2.
5/ These interviews were rushed, allowing only 5-10 minutes per child, and after the children had been together with Ms.
Sheppard for some period of time. Ms. Sheppard did not do the interview but only took notes. Her vagueness as to whether Yana actually attributed her burns to Respondent is of concern but does not necessarily taint the statements of the other two children. Michael and Taleca's recantation of a prior accusation of abuse by Respondent is not necessarily disqualifying, and that event may explain their delay in talking about corporal punishment. All the children were consistent on basic points, age-appropriate in their language and detail, and apparently not influenced by the natural mother as set out in n.2.
6/ There is no clear, credible evidence as to which, if any, of the numerous photographs admitted in evidence were shown to Respondent on November 3, 2000.
7/ Hearsay statements and identifying or directive behavior of
D. may not be considered here due to their failure to meet the requirements of Section 90.803(23), Florida Statutes.
8/ Although Michael could have concocted his story overnight, in collusion with Taleca, that is unlikely, because it is grossly consistent with his prior statements. Although he was medicated, it was a type of medication which helped him focus. His examination was by a specially-trained CPT nurse who is a reliable conduit for the statement. The clinical circumstances of the examination, without the DCF counselor present, using open-ended questions, and the separation of Michael from the other children were in aid of reliability. Michael's age, the nature of the abuse and its duration, his relationship to Respondent, age-appropriate terminology, and the lack of any psychological "affect" of fabrication, volunteerism or coaching further ensure reliability. Michael's prior recantation of an earlier accusation against Respondent is not necessarily disqualifying, but should be considered in the credibility assessment stage. His not attributing every mark to Respondent and his ability to distinguish marks made by Respondent from those made by his natural mother also suggests reliability.
9/ Although Taleca could have concocted her story overnight in collusion with Michael, that is unlikely due to its overall consistency with her prior statement. This examination was by a specially-trained CPT nurse who is a reliable conduit. The clinical circumstances of the examination, without the DCF counselor present, using open-ended questions, and the separation of Taleca from the other children were in aid of reliability. Taleca's reliability based on her prior recantation of an earlier accusation of Respondent is not necessarily disqualifying but should be considered in the credibility assessment stage. Her psychological "affect" was appropriate. Her elaboration upon her statement the previous day raises some credibility issues, but based on the expert testimony of how children gradually reveal and expand on abuse, I find this statement essentially reliable.
10/ Taleca's deposition (DCF Exhibit 9) is admissible because it was used for Respondent's impeachment purposes. Taleca's deposition (DCF 9) and Michael's deposition (DCF Exhibits 10A and 10B) are admissible, pursuant to Sections 90.803(22) and 90.804(2),Florida Statutes, as prior testimony in a similar proceeding wherein Respondent and her prior lawyer had the opportunity of confrontation. I find no offense in this procedure to Sections 90.402 or 90.403, Florida Statutes.
11/ This statement was spontaneous, overheard, and unsolicited. Ms. Riley is a reliable conduit in that she reported the statement before any charges were brought against her by the children.
12/ Although Michael testified that Respondent had picked him up by his leg and thrown him down in the hallway; that she had kicked and jumped on his stomach with her foot; that she had hit him on the tops of his feet; that she put all of her weight on his neck and stomach; that she did the same exact thing to all three children; that she busted all their noses by throwing them on the tip of their noses; and although Taleca testified to Respondent banging her head against a doorknob three times; banging her head into the deep freeze; choking her so that she could hardly breathe and saying "the next time, girl, I'm going to choke you to death"; slamming all three children against the wall; stepping on their stomachs and backs and kicking them; hitting her so hard with a spoon that she bled from her thigh; and hitting her with a dog leash; this testimony was not corroborated by the medical examinations. Moreover, most of this testimony grew like a weed over the period of several months and is logistically incredible. Whether I consider
Taleca's and Michael's verbal descriptions of Respondent jumping on all the children's backs and stomachs or merely Taleca's demonstration given in open court which showed Respondent holding Taleca down with one foot and kicking her with the other, I find these descriptions unreasonable and incredible in light of Respondent weighing over 200 pounds and no injuries consistent with that force being found on any child. For the same reasons, I reject both Taleca's and Michael's testimony that Respondent made them take off all their clothes and then jumped on them in the hallway.
COPIES FURNISHED:
William E. Davis, Esquire 1110 Northwest 6th Street Gainesville, Florida 32601
Lucy Goddard, Esquire Department of Children and
Family Services
Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602
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
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 07, 2002 | Agency Final Order | |
| Oct. 04, 2001 | Recommended Order | "Preponderance of evidence" test for revoking foster care license was met as to use of corporal punishment; not met as to insufficient income; and not met as to demeaning or intimidating with regard to natural parents. |
EDWARD SAWYER AND CYNTHIA SAWYER vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 01-000111 (2001)
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES vs. JACOB AND DONNA VERMEULEN, 01-000111 (2001)
CLEMINTINE LYONS FOSTER HOME vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 01-000111 (2001)
RONALD C AND MARJORIE GROVER vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 01-000111 (2001)
