STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORRAINE ARNOLD,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

)

)

)

)

) Case No. 01-1536

)

)

)

)

)

)

RECOMMENDED ORDER

A formal hearing was conducted on August 15 and 17, 2001, before Daniel M. Kilbride, Administrative Law Judge, the Division of Administrative Hearings, by videoconference between Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Lorraine Arnold, pro se

3997 Biscayne Drive

Winter Springs, Florida 32708

For Respondent: Craig A. McCarthy, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801 STATEMENT OF THE ISSUE

Whether Petitioner's application for re-licensure as a family foster home should be approved or denied.

PRELIMINARY STATEMENT

Petitioner, Lorraine Arnold, has been licensed by Respondent, Department of Children and Family Services, as a family foster home since 1995. Petitioner's license was renewed annually between 1995 and her application for re-licensure of December 15, 2000. Respondent notified Petitioner that her application was denied in writing on March 9, 2001. Petitioner timely requested an administrative hearing. This matter was referred to the Division of Administrative Hearings on April 25, 2001, and set for hearing. One motion for continuance was granted, after which the hearing was set for August 15, 2001, by videoconference with the Parties attending in Orlando, Florida. Said hearing was conducted as scheduled and, after it became clear that additional time was required to complete the hearing, was completed by agreement of the Parties on August 17, 2001.

Prior to receiving evidence on the issue as stated above, the Administrative Law Judge addressed Petitioner's Motion to Compel filed August 10, 2001, and defined the scope of evidence to be heard accordingly.

Petitioner called three witnesses and testified in her own behalf. Respondent offered six witnesses. Petitioner entered no exhibits into evidence; Respondent offered six exhibits, five were admitted in evidence and one was withdrawn.

The Transcript of the hearing was filed September 14, 2001.

Petitioner submitted her proposals on October 2, 2001. Respondent submitted its Proposed Recommended Order on September 24, 2001.

FINDINGS OF FACT

1. Petitioner, Lorraine Arnold, has operated a foster home since 1995 at her current place of residence.

2. Petitioner applied for and was granted a family foster home license in January 1995. Petitioner was approved for placement of up to two children between the ages of 5 and 10 years. Foster home licenses are valid for one year and must be renewed annually. Petitioner's license was renewed annually thereafter.

3. On December 15, 2000, Petitioner applied to renew her foster home license. Respondent denied Petitioner's application for renewal on March 9, 2001.

4. During the relevant time-period in 2000, Petitioner was entrusted with responsibility for several children, including two teenage foster children, L. C. and J. B.

5. In late August 2000, Respondent's case worker approached Petitioner with the request to accept into her home

   L. C., a 17-year-old female. Petitioner was told that L. C. was severely emotionally disturbed (SED), had violent behavior problems and was taking psychotropic medication.

6. Because of L. C.'s history of behavioral problems, including incidents of violence, Respondent offered to contract with a private company to provide Certified Nursing Assistant (CNA) services to supplement the care given to L. C. Contract CNAs were to be present with L. C. around the clock, in order to provide Petitioner and her family some semblance of protection in the event of a violent outburst by L. C. This case worker assured her that under the watchful eye of the CNAs, L. C. would do fine. Petitioner was provided with additional monetary inducements by Respondent in order to persuade Petitioner to take in L. C.

7. Upon placement, L. C.'s "Blue Book" was not provided to Petitioner. The "Blue Book" contained critical medical and social information about L. C. In addition, L. C. was not under the care of any local healthcare professional at the time of placement.

8. Although Petitioner is a licensed pharmacist in Florida, she has received no special training in dealing with SED children. No specialized training of any kind was provided by Respondent during the two months that L. C. lived in Petitioner's home. Respondent was aware that L. C.'s needs required that she be placed in a living situation where she could receive proper therapy for her special needs, but none was provided. Respondent's conduct in the placement of L. C. in

   Petitioner's home violated its own guidelines and demonstrated very poor judgment on its part.

9. The presence of contract CNAs was not intended to, nor did it in fact, relieve Petitioner of her responsibility to supervise foster children in her care. However, Petitioner was not instructed by Respondent that the teenage children in her care were not permitted to be alone or leave with the CNA, if the CNA offered to take them out for a supervised activity.

10. In August of 2000, Petitioner gave L. C. and J. B., both minor girls, permission to go with the CNA, then on duty, to the home of L. C.'s aunt. While at the home of L. C.'s aunt,

    J. B., then fourteen years old, slipped out of the house and smoked marijuana. When J. B.'s case worker learned of the incident, she had J. B. tested for drug usage; J. B. tested positive for marijuana. Petitioner had L. C. tested and her test results were negative.

11. Carla Washington, case worker for both L. C. and

    
    

    J. B., had previously informed Petitioner that L. C. was not to have contact with family members that was not supervised by Respondent. Petitioner misunderstood the instructions, and believed that L. C. was only restricted from having contact with her mother. Petitioner was not negligent in this incident, and

    J. B.'s misconduct could not have reasonably been foreseen.

12. Less than a month before the incident in which J. B. smoked marijuana at L. C.'s aunt's house, there were two other incidents involving J. B. and L. C., with results detrimental to the foster children.

13. On one occasion, Petitioner gave permission for the CNA on duty to take L. C. and another foster child out to the movies. Because of a family emergency, Petitioner left Orlando and drove to Tallahassee, leaving her adult daughter in charge of the household. The CNA took the two foster children to her residence, changed into "hoochie" clothes, went to a bar during which L. C. visited with her mother and witnessed a shooting.

14. After the incident, the case worker spoke to Petitioner and reminded her that L. C. was not to have unsupervised contact with her mother. Petitioner complied with these instructions.

15. No evidence was presented concerning the disposition of the CNA that perpetrated this outrageous conduct. Petitioner was not negligent in giving permission for the girls to go to the movies, and the CNA's conduct could not have been foreseen.

16. On September 14, 2000, Petitioner was placed in a position of duress in regard to L. C. She had not received

    L. C.'s Blue Book, which contained all of her medical records and her Medicaid number, and L. C. was out of all of her psychotropic medications. Petitioner tried several times to

    find a psychiatrist who would treat L. C. She spent 2 days looking through the telephone book and calling every psychiatrist until she found one who would accept Medicaid. She also went to the Nemours Children's Clinic and spent most of the day waiting at the Sanford Health Department, where Petitioner finally discovered that L. C. could only be seen by a doctor in the Oviedo area. When the doctor in Oviedo was contacted an appointment was made for the following day at 2:00 p.m.

    Petitioner contacted the caseworker for assistance in getting

    
    

    L. C. to the doctor's appointment because Petitioner was unable to remain out of work for a third day. The case worker informed Petitioner that she was unable to assist, and if Petitioner did not see that the child got to the doctor any repercussions would be Petitioner's responsibility.

17. Petitioner was given no choice but to rely on a family member to assist in making sure that L. C. received the required medical attention. Petitioner asked a family member to take

    L. C. and J. B. to the doctor's appointment. He left them in the reception area for 20 minutes to run an errand while L. C. waited to see the doctor. Before he returned, L. C. and J. B. misbehaved at the doctor's office. The adult family member did not have reason to believe that these two teenagers could not be left alone at a doctor's office for 20 minutes. He expected

    that the teenagers would behave themselves for such a short period of time.

18. During the course of her testimony in this matter,

    
    

    J. B. testified that she had sexual relations in the house while living with Petitioner. This testimony is neither credible nor relevant to this proceeding.

19. Petitioner has not committed an intentional or negligent act which materially affected the health or safety of

    L. C. or J. B. while in her care.

    
    

20. Several years in the past, Petitioner used corporal punishment on a much younger, uncontrollable foster child on more than one occasion. Upon receiving counseling from her case worker, Petitioner agreed to corrective action to address her improper use of corporal punishment of foster children entrusted to her care.

21. Over time, Petitioner has displayed extreme care and concern for the children placed in her care. She has taken the issues of supervision seriously.

22. Petitioner has demonstrated that as a foster mother she has given the children placed in her care an abundance of love. She has taught them how to care for and love themselves. She has been there to listen to their needs and their desires, and she cares about them. She has taught them that self-

    control, self-discipline and hard work will lead to success in life.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearing has jurisdiction over the subject matter and parties to this case, pursuant to Section 120.569 and 120.57(1), Florida Statutes.

24. Section 409.175, Florida Statutes, relating to licensure of family foster homes reads, in pertinent part:

    (1)(a) The purpose of this section is to protect the health, safety, and well-being of all children in the state who are cared for by family foster homes, residential child-caring agencies, and child-placing agencies by providing for the establishment of licensing requirements for such homes and agencies and providing procedures to determine adherence to these requirements.

    
    

    * * *

    
    

    1. "Family foster home" means a private residence in which children who are unattended by a parent or legal guardian are provided 24-hour care. Such homes include emergency shelter family homes, family foster group homes, and specialized foster homes for children with special needs. A person who cares for a child of a friend for a period not to exceed 90 days, a relative who cares for a child and does not receive reimbursement for such care from the state or federal government, or an adoptive home which has been approved by the department or by a licensed child-placing agency for children placed for adoption is not considered a family foster home.

       
       

    2. "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.

       
       

    3. "Operator" means any onsite person ultimately responsible for the overall operation of a family foster home . . . .

       
       

    4. "Owner" means the person who is licensed to operate the . . . family foster home . . . .

       
       

25. Section 409.175(8)(b)(1), Florida Statutes, authorizes Respondent to deny, suspend, or revoke a license for an intentional or negligent act materially affecting the health or safety of children in the home.

26. The burden of proof is upon Respondent to adduce evidence to support the denial of the renewal of Petitioner's application for re-licensure. Phillips v. Department of Business and Professional Regulation, 737 So. 2d 553 (Fla. 1st DCA 1998); Dubin v. Department of Business and Professional Regulation, 262 So. 2d 273 (Fla. 1st DCA 1972); Section 120.60(5), Florida Statutes.

27. Respondent must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

28. Petitioner, Lorraine Arnold, was approved in 1995 as a foster parent to provide foster care for two children between the ages of 5 and 12. Petitioner has never before this incident had any problems with any children left in her care, even with the extra responsibilities of having up to five foster children placed in her home at one time.

29. Although Petitioner may not have used the best judgment in regard to the incidents in August and September 2000, she had the best of intentions, and Respondent has failed to prove that Petitioner committed an intentional or negligent act which materially affected the health or safety of children in her home.

30. Respondent has demonstrated that she is a loving, caring, and competent caregiver and foster parent.

RECOMMENDATION

Therefore, it is RECOMMENDED that the Secretary grant Petitioner's application for renewal of her family foster home license.

DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 23rd day of October, 2001.

COPIES FURNISHED:

Lorraine Arnold 3997 Biscayne Drive

Winter Springs, Florida 32708

Craig A. McCarthy, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801

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.

Docket for Case No: 01-001536

Orders for Case No: 01-001536