STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 01-2488

)

AL SIEGEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on September 6-7 and October 1-2, 2001.

APPEARANCES

For Petitioner: Deborah Guller

Department of Children and Family Services

201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301

For Respondent (September 6-7):

Alan Siegel, pro se

500 Northwest 34th Street, Apartment #105 Pompano Beach, Florida 33064

For Respondent (October 1-2):

Samuel D. Lopez Samuel D. Lopez, P.A.

629 Southeast Fifth Avenue Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of acts and omissions to justify the revocation of his license to operate a family foster home, pursuant to Section 409.175(8), Florida Statutes.

PRELIMINARY STATEMENT

By letter dated May 15, 2001, Petitioner informed Respondent that it was revoking his license to operate a family foster home due to the health and safety of the children placed in the home. The letter alleges that Respondent violated Section 409.175(8)(b)1. and 2., Florida Statutes, by refusing to permit a therapist access to J. K. and refusing to permit his brother, Ju. K., to speak to his therapist in private; disparaging the stepmother of J. K. and Ju. K. and refusing the children access to their stepmother; failing to cooperate with the counselors and agency responsible for the children; violating a "no-contact" demand concerning Ju. K. upon his removal from Respondent's home; failing timely to return the possessions and the Client Resource Record of Ju. K. after his removal from Respondent's home on March 28, 2001; violating Petitioner's disciplinary policies by destroying and selling the children's property; ripping the shirt off Ju. K.; imposing harsh discipline, including screaming obscenities; and disparaging Ju. K. to his friend's family and discouraging the

continued friendship, in violation of confidentiality requirements.

On June 5, 2001, Respondent requested a formal hearing.

At the hearing, Petitioner called nine witnesses and offered into evidence 17 exhibits: Petitioner Exhibits 1-6 and 8-18. Respondent called two witnesses and offered into evidence

14 exhibits: Respondent Exhibits 1-14. All exhibits were admitted except Petitioner Exhibit 10 and Respondent Exhibits 5, 10, and 14, which were proffered. Petitioner Exhibits 8 and 18 and Respondent Exhibits 2, 4, 9, and 13 were not admitted for the truth of their contents. Petitioner Exhibits 1, 5-6, and 8-

18 and Respondent Exhibits 1-2 and 4-14 are sealed to preserve the rights to confidentiality of the minor foster children.

The court reporter filed the transcript on September 25, 2001. Petitioner filed its proposed recommended order on November 2, 2001.

FINDINGS OF FACT

1. Petitioner licensed Respondent to operate a family foster home from June 22, 2000, until May 15, 2001, at which time Petitioner revoked Respondent's license. The only foster children placed with Petitioner were Ju. K. (Ju.) and J. K. (J.), who are brothers.

2. During the majority of the period in question, Ju. was

   
   

   16 years old and J. was 17 years old. The boys were adopted at

   infancy. However, their adoptive mother died when they were young. The adoptive father remarried, but died a few years later, in January 1999. The stepmother never adopted the children, and, shortly after the death of their adoptive father, she turned over the two children to foster care.

3. Respondent had been a friend of the stepmother since the mid-1980s and, through her, had met the adoptive father. Respondent became close with the couple and their children, whom he often visited on holidays.

4. Learning that at least one of the boys had had problems in foster care, Respondent decided to qualify to become their foster father. At the time, Respondent was 40 years old and single and had not raised any other children. However, Respondent took the training courses required for licensing as a foster parent.

5. After Respondent obtained his foster parent license, Project Teamwork for Kids, which is the private entity in Brevard County that recruits, trains, and licenses foster parents and places foster children with these parents, placed Ju. and J. with Respondent. J. began to live with Respondent in January 2000, and Ju. joined him in June 2000.

6. During the summer of 2000, relations among Respondent, J., and Ju. were good. They took vacations and settled into their new lives during a period relatively free of stressful

   demands. Respondent asked Project Teamwork 4 Kids representatives not to start any family therapy during the summer and, once school started, asked that they again defer the initiation of such services. Respondent was aware that Ju. had been diagnosed with dissociative personality disorder, but believed that a normal home life would ameliorate this condition.

7. During the summer, Respondent was concerned with the high school to which Ju. had been assigned for ninth grade. Respondent convinced school officials to reassign Ju. to a different high school, but school officials warned Respondent that, due to the reassignment, they would not tolerate disruptive behavior from Ju. Respondent was satisfied with J.'s assignment for tenth grade because it was the same school from which he had earlier dropped out.

8. At the start of the school year, Respondent required weekly progress reports from J.'s teachers. However, as J.'s grades improved, Respondent dropped this requirement.

9. During the period covered by this case, Respondent's relationship with J. was better than Respondent's relationship with Ju. Respondent and J. had a major disagreement arise at the end of October when J. returned home drunk from a homecoming celebration. A day or two later, after giving the matter considerable thought, Respondent discussed the matter with J.

   and imposed the punishment that Respondent would not provide his written consent for J. to obtain his driving learner's permit for six months, although Respondent would reconsider at three months.

10. When J. learned of his punishment, he became irate and telephoned his case manager with Project Teamwork 4 Kids, Karen McCalla. He demanded that she remove him from Respondent's home. Ms. McCalla visited the home and spoke with J. alone for several hours, then Respondent, and then J. again alone.

11. This home visit provides an early, but typical, example of the difference in perspectives of Respondent and Petitioner's witnesses. According to Respondent, Ms. McCalla arrived at the home, spoke with J. alone for several hours, spoke with Respondent, and then spoke with J. alone again. She then announced that Respondent should sign for J.'s learner's permit, but not allow him to drive for three months. Although he disagreed with the recommendation and felt that Ms. McCalla's recommendation had undercut his authority, Respondent complied with the request.

12. Ms. McCalla's version is considerably different.

    
    

    Agreeing that J. was demanding that she remove him from Respondent's home, Ms. McCalla noted that J. complained generally that Respondent was "overbearing, overpowering and does not give [J.] any privacy." Focusing on the larger issues

    than merely the proper punishment for J.'s recent misbehavior, Ms. McCalla recommended that the family undergo family therapy.

13. Ms. McCalla's version is credited. By Respondent's own account, Ms. McCalla spent "several hours" speaking with J. initially. Although underage drinking is a serious matter that may necessitate serious discussions, it is unlikely that

    Ms. McCalla and J. could have spent "several hours" on this single transgression. It is more likely that J. broadened his complaints in the manner described by Ms. McCalla. Respondent's contrary version either undermines his credibility as a witness or, if sincere, his competence as a foster parent.

14. During the fall, Respondent's relationship with Ju. deteriorated. In general, Respondent's nascent parental skills were insufficient to meet the needs of Ju. When a conventional menu of incentives and disincentives failed to produce the desired results, Respondent grew increasingly frustrated, but declined to take advantage of the support resources available to him through Project Teamwork 4 Kids and its contractors. Instead, Respondent, alone, proceeded with his own disciplinary scheme, intensifying his disciplinary measures each time that less intense measures failed. Eventually, conflict between Respondent and Ju. escalated, and the domestic situation became unbearable for both of them.

15. For instance, at school, Respondent was legitimately concerned that Ju. not jeopardize his placement at the high school to which he had been assigned due to Respondent's efforts. Worried about Ju.'s associations at school, especially due to Ju.'s poor school associations in the past, Respondent required Ju. to sign into the library immediately after eating lunch, so he would not have the chance to socialize with his peers. If Ju. failed to sign in, a teacher was to telephone Respondent, who would go to school to find Ju. By Respondent's admission, he enforced this arrangement for four to six weeks.

16. Respondent was adamant that Ju. not date until he was

    
    

    16 years old. This was a legitimate concern due to sexual behaviors that Ju. had displayed prior to his arrival in Respondent's home.

17. Early in the school year, while Ju. was still 15 years old, Respondent overheard him speaking on the telephone with a girl from school. Respondent interrupted the conversation and asked Ju. to ask the girl if her mother were home. Finding that she was, Respondent asked to speak to the mother. Explaining to the mother that Ju. was not allowed to go on one-on-one dates until he reached 16 years of age, Respondent, by his own testimony, managed to agitate and offend the mother. Respondent admitted that Ju. became upset because he had considered the girl his girlfriend.

18. On another occasion, Respondent required that Ju. end a relationship with a girl at school. Without detailing any concerns about sexual activity, Respondent explained his intervention by noting that Ju. had taken another boy's girlfriend, who seems to have not been suitable for Ju.--in Respondent's opinion.

19. At home, numerous times Respondent employed more intense strategies when conventional disciplinary interventions failed to produce the desired results. For instance, when Ju. persisted in viewing sexually unsuitable material on the television in his room, Respondent removed the bedroom door, thus depriving Ju. of all privacy. Also, when Ju. persisted in abusing and overusing the telephone, even after being placed on telephone restriction, Respondent removed the handsets when he left the home, leaving the boy without telephone service in the home, although he could walk outside the apartment to a neighbor or a pay phone.

20. Gradually, frustration erupted into physical confrontations. Twice, Respondent ripped T-shirts off the back of the boy during angry exchanges. Once, Respondent lightly slapped the boy on the mouth when he swore at Respondent. Twice, Respondent intentionally damaged audio equipment used by Ju. For each of these actions, Respondent devised transparent

    stories to cover up his failure to handle Ju.'s transgressions in a positive, effective manner.

21. As the above incidents suggest, Respondent sought to impose a level of control over Ju. that was unsuitable for Ju.'s age and the circumstances of the relationship that existed between Respondent and Ju. Lacking both experience and maturity, Respondent obstinately dug in deeper each time his discipline failed to produce the desired result. Never lacking in good motives, Respondent lacked the resources needed for the difficult parenting task that Ju. presented, and Respondent exacerbated the situation by refusing to accept the assistance of professionals who might have been able to help him with Ju.

22. Over time, even Respondent's innocuous behavior- modification techniques became counterproductive. For instance, Respondent routinely insisted that he and a child not go to sleep without first resolving any conflicts that may have arisen. Although a salutary policy, if applied with discretion, Respondent's overbearing implementation of this policy intensified hostilities, rather than defused them.

23. An example of the injudicious use of this policy took place in early February 2001 when Respondent and Ju. got into an argument over an uncompleted homework assignment. Respondent warned Ju. that Petitioner lacked sufficient beds to accommodate Ju. at the time and that, if Ju. did not compose himself,

    Respondent would call the police to have Ju. removed from Respondent's home. This was especially hurtful to a child who had already known the pain of abandonment and abuse. Trying to defuse the confrontation, Ju. demanded time to step outside and cool off, but Respondent, insistent on a resolution on his terms, ordered Ju. to remain inside until Respondent had finished talking to him.

24. By March 2001, Project Teamwork 4 Kids representatives had tried to intervene on at least two occasions in recent weeks, but Respondent had become increasingly resistant to what he viewed as interference from caseworkers with Ju. and J. By this time, Ju. wanted out of the home, and Respondent wanted him out of the home. On March 28, 2001, Project Teamwork 4 Kids removed Ju. from Respondent's home. About six weeks later, Project Teamwork 4 Kids also removed J. from Respondent's home.

25. Petitioner proved some of its specific allegations and failed to prove others, but, as the Administrative Law Judge noted at the final hearing, the basic issue in this case is whether Petitioner can prove that Respondent has committed an intentional or negligent act materially affected the health or safety of children in his home. Petitioner has met its burden with respect to Ju.

26. Ju. would have been a considerable challenge to a person with considerable parenting experience and skills.

    Respondent lacked both, but, knowing Ju.'s special needs, nonetheless sought the responsibility of serving as Ju.'s foster father. As the situation worsened, Respondent lacked the insight to avail himself of the resources offered to him and Ju. Instead, Respondent resorted to ineffective disciplinary strategies that eventually deteriorated into angry outbursts, culminating in Respondent's angry and desperate threat to end the placement itself--a most injurious act, given Ju.'s circumstances and dissociative personality disorder. Although it is clear that Respondent assumed a very difficult undertaking, his incompetent discharge of these responsibilities, coupled with his obstinate refusal to accept readily available help from others with greater training and experience, justifies the revocation of his family foster home

    license.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

28. Section 409.175(8)(b)1. authorizes Petitioner to suspend or revoke a family foster home license for "[a]n intentional or negligent act materially affecting the health or safety of children in the home or agency."

29. Section 409.175(2)(f) states in part:

    
    

    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 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.

    
    

30. It is unnecessary in this case to determine if the standard of proof is a mere preponderance of the evidence, due to Section 409.175(2)(f), rather than clear and convincing evidence. Petitioner has proved by clear and convincing evidence that Respondent is guilty of intentional or negligent acts materially affecting the health or safety of Ju. in the home. The proper penalty is revocation due to the vulnerability of foster children, whose safety and health depends primarily on the foster parent with whom they have been placed, and Respondent's lack of insight and judgment, as evidenced by his repeated refusals to accept the assistance of trained professionals and his transparent attempts at the hearing to explain away obvious instances in which he had lost his temper

while dealing with Ju.

RECOMMENDATION

It is RECOMMENDED that the Department of Children and Family Services enter a final order revoking Respondent's family foster home license.

DONE AND ENTERED this 22nd day of January, 2002, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 22nd day of January, 2002.

COPIES FURNISHED:

Kathleen A. Kearney, Secretary Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

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

Peggy Sanford, Agency Clerk Department of Children and

Family Services

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

Deborah Guller

Department of Children and Family Services

201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301

Samuel D. Lopez Samuel D. Lopez, P.A.

629 Southeast Fifth Avenue Fort Lauderdale, Florida 33301

Alan Siegel

500 Northwest 34th Street, Apartment #105 Pompano Beach, Florida 33064

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-002488

Orders for Case No: 01-002488