STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE AND ELIZABETH HANKERSON,

Petitioners,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-1761

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RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on June 27, 2001, in Sebring, Florida.

APPEARANCES

For Petitioner: Charlie and Elizabeth Hankerson, pro se

1240 Grand Avenue

Sebring, Florida 33870

For Respondent: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030 STATEMENT OF THE ISSUE

Should Petitioners' application for annual renewal of their foster care license be denied?

PRELIMINARY STATEMENT

By letter dated March 20, 2001, the Department of Children and Family Services (Department) advised Petitioners that their Application to Renew Foster Care License had been denied. As grounds therefor, the Department alleges that Petitioners failed to abide by the Partnership Agreement signed by Petitioner Elizabeth Hankerson on March 19, 1998, and the Partnership Agreement signed by Elizabeth Hankerson and Charlie Hankerson on May 19, 1999, in that: (a) during a relicensure inspection on February 7, 2001, several unsafe and unsanitary conditions in Petitioners' home were noted in violation of Rule 65C- 13.011(11)(b), Florida Administrative Code; (b) during a relicensure inspection on February 7, 2001, several unsafe and unsanitary conditions were noted in Petitioners' yard in violation of Rule 65C-13.011(11)(b), Florida Administrative Code; (c) during a relicensure inspection on February 8, 2001, the licensing counselor noted several objects, materials, and conditions in the home which constituted a danger to children in violation of Rule 65C-13.011(11)(b), Florida Administrative Code; (d) during a relicensure inspection on February 8, 2001, the licensing counselor noted several containers of medicine and of chemicals that were not stored in a locked container in violation of Rule 65C-13.011(14)(a), Florida Administrative Code; (e) during a relicensure inspection on February 9, 2001,

the licensing counselor noted that the unsafe conditions noted during the February 7 and 8, 2001, inspections had not been corrected in violation of Rule 65C-13.011(11)(b) and (12)(a), Florida Administrative Code; and (d) during a follow-up visit on February 19, 2001, many conditions and situations unsafe for children were observed in the home and the yard as previously noted in violation of Rule 65C-13.011(11)(b) and (12)(a), Florida Administrative Code. By an undated letter received by the Department on April 10, 2001, Petitioners requested a hearing on the denial of their renewal application. By Notice dated May 4, 2001, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, Petitioners presented the testimony of Elizabeth Hankerson, Deloris Cox, Maggie T. Walker, and Linda Faye Wynn. Petitioners' Exhibits 1 through 5 were admitted in evidence. The Department presented the testimony of Faye Olds, Karen Luther, Shawna Vest, and Evelyn Alvarado. The Department’s Exhibits 1 through 14 were admitted in evidence.

Rule 65C-13.011(11)(b),(12)(a), and (14)(a), Florida Administrative Code, was officially recognized.

A Transcript of this proceeding was filed with the Division on July 11, 2001. The Department timely filed its Proposed

Recommended Order. Petitioners elected not to file a proposed

recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida charged with the responsibility of licensing family foster homes.

2. Petitioners were first licensed as a foster home by the Department in March 1996.

3. On March 19, 1998, Petitioner Elizabeth Hankerson entered into a Partnership Agreement with the Department, which in pertinent part provides:

   Partnership Agreement

   
   

   * * *

   
   

   In Re: Lack of supervision/Consistency to keep home within foster care licensing standards/Disciplinary methods:

   
   

   This partnership agreement has the intention to address two safety issues that were reported in this home. The first one refers to the lack of adult supervision for the foster children when the foster mother, Mrs. Hankerson, is working in her beauty salon.

   The other issue is related to the lack of consistency in keeping the foster home within standards that will assure that children are free of hazards.

   (Emphasis furnished.)

   Parents' tasks:

   
   

   * * *

   
   

4. The foster mother will keep scissors, razors, electric equipment and chemicals used in her beauty salon out of the reach of children and locked in a cabinet. The foster mother will keep the key on her at all times.

* * *

1. The foster mother will keep the home sanitized to the best of her abilities to avoid risk of allergies and infections in the foster children.

   
   

2. The foster mother will keep laundry clothes in a closet or place else than the floor thus avoiding a fire hazard that could put the whole family at risk.

   
   

3. The foster home must be maintained to such extent that sanitation inspection may be passed at any time with a satisfactory rating.

1. On May 19, 1999, Elizabeth Hankerson and Charlie Hankerson entered into a Partnership Agreement with the Department, which in pertinent part provides:

   Partnership Agreement

   
   

   * * *

   
   

   In Re: Lack of supervision/Consistency to keep home within the foster care licensing standards/Disciplinary methods:

   
   

   This partnership agreement has the intention to address two safety issues that were reported in this home. The first one refers to the lack of adult supervision for the foster children when the foster mother, Mrs.

   Hankerson, is working in her beauty salon. The other issue is related to the lack of consistency in keeping the foster home within standards that will assure that children are free of hazards.

   (Emphasis furnished.)

   
   

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   Parents' tasks:

   
   

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   1. The foster mother will keep scissors, razors, electric equipment, and chemicals used in her beauty salon out of the reach of children and locked in a cabinet. The foster mother will keep the key on her at all times.

      
      

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      1. The foster parents will keep the home sanitized to the best of her abilities to avoid risk of allergies and infections in the foster children.

         
         

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      2. The foster parents will keep laundry clothes in a closet or place else than the floor thus avoiding a fire hazard that could put the whole family at risk.

         
         

      3. The foster home must be maintained to such extent that a sanitation inspection may be passed at any time with a satisfactory rating.

      
      

   2. On February 7, 2001, Karen Luther (Luther), a licensing counselor with the Department, visited Petitioners' home in anticipation of Petitioners filing their application for the annual renewal of their foster care license. At the time of

      this visit, Petitioners were caring for two foster children in their home, ages 3 years and 15 years.

   3. During her visit on February 7, 2001, Luther observed conditions in Petitioners' home that she considered to be unsanitary or unsafe for children. Those conditions were: (a) exposed light bulbs in a ceiling fixture; (b) a light switch taped over to prevent the switch from being used; (c) missing wall tiles in the main bathroom; (d) black mold growing on the lower bathroom tiles and on the front and back of the bathtub in the main bathroom; (e) a half-bath filled with debris and stored objects stacked approximately six feet high; (f) kitchen cabinets that could not be closed exposing the contents to the children; and (g) a cabinet in the utility room with a severely bent door, which made cleaning chemicals that were stored in the cabinet accessible to the children.

   4. During her visit on February 7, 2001, Luther also observed conditions in Petitioners' yard which she considered constituted a danger to the children. Those conditions were:

      (a) rebar (metal rods) sticking out of a foundation used as an outdoor patio; (b) large amounts of broken glass; (c) a curtain rod; (d) a large pile of rusty nails; (e) a part of a burned storage shed filled with debris; (f) auto hub caps and tires;

      (g) high weeds; (h) machinery and truck parts, including a transmission; (i) a rusted gasoline can, many metal objects,

      pieces of a broken storm window, cans, broken pottery, stuffed toys, screwdrivers, large rolls of fencing, fence posts, an unlicensed van filled with clothing; and an abandoned boat.

   5. On February 8, 2001, Shawna Vest (Vest), child protective investigator, visited Petitioners' home for the purpose of investigating a Florida Abuse Hotline Report alleging conditions hazardous to the two foster children residing in the home. While in the home, Vest observed: (a) a knife and a bottle of Mylanta on the kitchen counter within reach of the three-year old child; (b) containers of barbecue sauce, mustard, salt and seasonings that were opened and within reach of the three-year child; (c) scum building up on the outside of the girl's bathroom, a curling iron exposed, and cleaning materials not locked in a cabinet; (d) missing tile from the wall and mold along the edges in the boys' bathroom; (e) a container of Hot Shot insecticide out in the open in Elizabeth Hankerson's bathroom, which was accessible to the children; and (d) some children's medicine and aerosols out in the open accessible to the children in Elizabeth Hankerson's bedroom.

   6. On February 8, 2001, while visiting Petitioners' home, Vest observed a partially burned shed, broken glass, broken machinery, tires, hubcaps, an abandoned van, an abandoned boat, and generally, a junk area. Vest closed the Florida Abuse Hotline Report as verified.

   7. On February 9, 2001, Petitioners filed an application with the Department for renewal of their foster care license.

   8. On February 14, 2001, Elizabeth Hankerson visited with Luther in her office. Luther advised Elizabeth Hankerson that Petitioners' home did not meet the requirements of the relevant administrative rules and that Petitioners would have to clean the house and remove all safety hazards from the house and yard in order to meet the requirements for licensure renewal.

   9. On February 19, 2001, Luther visited Petitioners' home and observed that Petitioners had made some effort to bring the house and yard into compliance in that Petitioners had removed the stored objects from the half bathroom. However, Luther also observed: (a) bare light bulbs still in the boys' bedroom; (b) kitchen cabinets that still did not close properly so as to deny the children access; (c) the doors of the cabinet in the utility room were still bent allowing the children access. Luther observed that although some of the safety hazards had been removed from the backyard, most of them remained, including the partially burnt shed, which had burned in April 1999. Luther also observed that the debris, which had been removed from the yard, had been placed in a watermelon truck on the edge of property and was still accessible to the children.

   10. Evelyn Alvarado (Alvarado), supervisor of licensing for the Department's Sebring office, was present during the time

       Luther visited Petitioners' home on February 7 and 19, 2001. Alvarado observed the same unsafe conditions as Luther observed on those dates.

   11. On February 26, 2001, Alvarado advised Petitioners that their home, including the yard, was not safe for children in that conditions still remained in the home and the yard which constituted a danger to the children. Thereafter, on March 20, 2001, the Department advised Petitioners that their application for the annual renewal of their foster care license had been denied.

   12. Based on the testimonies of Luther, Vest, and Alvarado, which I find to be credible, there is sufficient evidence to establish facts to show that a number of conditions existed in the home and the yard which constituted a danger to the foster children living in the home, notwithstanding any testimony of Elizabeth Hankerson to the contrary, which I find lacks credibility.

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

   14. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,

       396 So. 2d 778 (Fla. 1st DCA 1981). The Department has the burden of proof in this proceeding. To meet its burden, the Department must establish facts upon which its allegations are based by a preponderance of the evidence. Department of Banking and Finance, Division of Securities and Investor Protection v.

       Osborne Stern Company, 670 So. 2d 932 (Fla. 1996), Section 120.57(1)(j), Florida Statutes, and Section 409.175(2)(f), Florida Statutes.

   15. Section 409.175(8)(a)(b)2., provides as follows:

(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.

* * *

2. A violation of the provisions of this section or of licensing rules promulgated pursuant to this section.

19. Rule 65C-13.011(11)(b), 12(a), and (14)(e), Florida Administrative Code, sets forth certain minimum standards for licensure of family foster homes as follows:

1. Physical Environment.

   
   

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   (b) The home and premises must be free from objects, materials, and conditions which constitute a danger to children. (Emphasis furnished.)

   
   

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2. Play Area and Equipment.

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(a) The home must have a safe outdoor play area as part of the property or within reasonable walking distance.

* * *

(14) Foster Home Safety.

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(a) All medications, poisonous chemicals, and cleaning materials must be in a locked place and inaccessible to children.

20. Clearly, Petitioners violated the Partnership Agreements by failing to keep their home within the foster care licensing standards. However, the Partnership Agreements notwithstanding, the Department has met its burden to show that Petitioners violated the above-cited licensing standards for foster homes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioners' application for the annual renewal of their foster care license.

DONE AND ENTERED this 27th day of September, 2001, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 27th day of September, 2001.

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

Charlie and Elizabeth Hankerson 1240 Grand Avenue

Sebring, Florida 33870

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 01-001761

Orders for Case No: 01-001761