STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

CHERYL SMITH,

Respondent.

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) Case No. 01-2837

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RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held on September 6, 2001, in Lake City, Florida, by Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David West, Esquire

Department of Children and Family Services

Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602

For Respondent: Dr. James Brant

Qualified Representative 1140 Durkee Drive, North Jacksonville, Florida 32209

STATEMENT OF THE ISSUE

May the Department of Children and Family Services (DCF) revoke Respondent's foster home license for violating Section

409.175 (8)(b) 1., Florida Statutes, in that Respondent intentionally or negligently committed acts that materially affected the health and safety of children, to-wit: inadequate supervision of a minor child entrusted to her care?

PRELIMINARY STATEMENT

This cause was referred to the Division of Administrative Hearings on or about July 18, 2001, after Respondent had timely requested a disputed-fact hearing upon DCF's proposed revocation of her license.

At the commencement of formal hearing on September 6, 2001, Dr. James Brant was examined and accepted as Respondent's qualified representative for purposes of this proceeding.

Official recognition was taken of various statutes and rules.

Petitioner DCF presented the oral testimony of Gracie Rager, Karen Page, and Barbara Brannon, and had four exhibits admitted in evidence.

Respondent testified on her own behalf and presented the oral testimony of Joanne Stokes. She had no exhibits admitted in evidence.

No transcript was provided. The parties' respective timely- filed Proposed Recommended Orders have been considered.

FINDINGS OF FACT

1. R.G. is the biological mother of the infant female, A.G., born out of wedlock.

2. R.G. gave birth to a male child before A.G. That son was taken away from R.G. by DCF.

3. Both A.G. and R.G., while R.G. was yet a minor under the age of 18 years, were adjudicated dependent children, subject to placement by DCF, pending DNA testing of A.G. and two putative fathers.

4. R.G. had been placed with a licensed foster home other than Respondent's licensed foster home. That home requested R.G.'s removal because R.G. would not follow its rules.

5. R.G. with A.G., was then placed in the licensed foster care home of Respondent.

6. Although the placement of A.G. with Respondent raised Respondent's home population to one more live foster child than Respondent's licensed capacity, a situation to which Respondent objected, DCF personnel informed Respondent that the infant A.G. would be counted as part of R.G.'s placement. Therefore, despite

   A.G. and R.G. being two separate persons, DCF would not consider Respondent to have exceeded her license's capacity. It was not explained on the record how DCF intended to pay board to Respondent for care of A.G., if A.G. were not considered a whole person, but it is clear that DCF personnel resented Respondent's asking how she would be compensated for A.G.'s care.

7. At all times material, R.G. and A.G. were subject to a Circuit Court Order which permitted only "unsupervised day

   visitation" by R.G. with A.G. (Emphasis in the original).

   
   

8. By implication of the Circuit Court Order, and by her own understanding from instructions by DCF personnel, Respondent knew that R.G., the minor mother, was not permitted to have unsupervised night visitation with the dependent infant, A.G.

9. DCF's and Respondent's understanding of the Circuit Court Order was that Respondent, R.G., and A.G. were required to be in Respondent's home after dark, but Respondent was not required to "eyeball" R.G. and A.G. all night, every night, while they were present in Respondent's foster home.

10. Gracie Rager, DCF foster care worker, authorized Respondent to allow R.G. to take A.G. out of Respondent's foster home during the day for unsupervised visitation.

11. Ms. Rager also authorized Respondent to allow R.G. to take A.G. to R.G.'s older natural sister's home to spend some nights, including weekends.

12. R.G.'s older natural sister was married and licensed for foster care. Accordingly, DCF personnel, including

    Ms. Rager, presumed that the older sister was sufficiently responsible and qualified to provide supervision of R.G. and A.G.

    at night. DCF reasonably concluded that R.G.'s presence with

    
    

    A.G. in her sister's home at night would constitute supervised

    
    

    night visitation and comply with the Court's Order.

    
    

13. Ms. Rager never authorized Respondent to allow R.G. to take A.G. out at night by herself, but Ms. Rager reasonably saw no impediment, including the Circuit Court Order, to R.G. taking

    A.G. with her anywhere she wanted to take the baby during the day.

14. R.G. openly resented being placed with Respondent because Respondent is Black. R.G. wanted to return, with A.G., to a white foster home placement. As a result, R.G. was never cooperative with Respondent.

15. When R.G. turned 18 years of age, she became openly defiant of Respondent. R.G. insisted that she alone, would do everything for A.G., who was still under two years old. R.G. refused all assistance from Respondent concerning A.G.

16. Respondent asked DCF to remove R.G. and A.G. or at least A.G., from her foster home. DCF had no other placement for them and asked Respondent to keep them until another placement was found.

17. R.G. had a part-time day job. To get there, she would "catch a ride" with others. She would not accept a ride from Respondent. Sometimes, R.G. would take A.G. with her to work and go directly from work, with A.G., to her older, licensed sister's

    home. On these occasions, R.G. and A.G. might be gone for a night or a weekend.

18. When R.G. did not return to Respondent's foster home, Respondent sometimes called R.G.'s older, licensed sister's home to be sure that R.G. and A.G. had arrived there safely. Sometimes, Respondent asked this sister to call her when R.G. and

    A.G. arrived.

    
    

19. However, Respondent did not always contact R.G.'s older, licensed sister or otherwise check-up on R.G.'s and A.G.'s whereabouts overnight or over a weekend.

20. When R.G. and A.G. returned after a night or weekend away, Respondent did not always check up on where they had been.

21. Respondent was under the impression that a different, adult sister of R.G.'s was also a suitable adult supervisor for after dark, even though that sister was not licensed for foster care.

22. Indeed, there is nothing in the Circuit Court Order requiring that supervised night-time visitation of R.G. with A.G. could not be undertaken by any other adult, regardless of whether that person were licensed for foster care.

23. Respondent never checked to see if R.G. and A.G. were with R.G.'s unlicensed sister.

24. At no time did Respondent report to law enforcement or DCF that R.G. had gone off and failed to return or that R.G. was taking A.G. away on weekends.

25. At some point, R.G.'s authorized and licensed older sister called Ms. Rager and said R.G. had taken A.G. out all night with R.G.'s boyfriend and had not returned. It is unclear from Ms. Rager's testimony whether R.G.'s and A.G.'s departure point for their night or weekend of unsupervised visitation was Respondent's home or R.G.'s licensed sister's home.

26. On February 9, 2001, Ms. Page, a DCF protective investigator, responded to an abuse hotline call and met with Respondent in the lobby of a DCF facility.

27. During her interview of Respondent, Ms. Page knew nothing of where either R.G. or A.G. had been picked up, or how long they had been unsupervised at night, but Ms. Page "understood" from Ms. Rager that R.G. and A.G. had been removed from Respondent's home and that Respondent had come to the DCF facility voluntarily. Ms. Page was particularly concerned because of a comment Respondent made in the course of this interview, to the effect that Respondent guessed she had "handled it all wrong" because she had only asked to have the baby, A.G., removed from her care instead of reporting R.G.'s rebelliousness.

28. DCF Investigator Page testified that she "verified" in an abuse report that Respondent was guilty of neglect by failure

    to notify authorities of R.G.'s unsupervised night visitation with A.G. There is insufficient evidence to determine of Respondent ever had a chance to challenge the abuse report or if the report was ever "confirmed."

29. There is no evidence R.G. or A.G. suffered harm as a result of this incident.

    CONCLUSIONS OF LAW

    
    

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

31. Section 475.175(8)(b) provides:

    
    

    Any of the following actions by a home or agency or its personnel is a ground for denial, suspension, or revocation of a license:

    
    

    1. An intentional or negligent act materially affecting the health or safety of children in the home or agency.

       
       

32. This is a de novo proceeding. DCF's assumption that the ultimate conclusion/classification of the abuse report is dispositive of this license revocation proceeding is not shared by the undersigned. In so stating, no comment is intended with regard to Subsections 409.175(4)(a) 5. and 6., Florida Statutes, with regard to maintaining "good moral character." Those subsections have not been charged against Respondent's license in

    this proceeding. The notice of charges to Respondent lists only Section 475.175(8)(b) 1., Florida Statutes.

33. DCF has not established that the health or welfare of

    
    

    A.G. or R.G. has been materially affected.

    
    

34. DCF has not established that an intentional or negligent act of Respondent materially affected the health or welfare of either R.G. or A.G.

35. DCF established that R.G. offended the Circuit Court Order by having unsupervised night visitation with A.G. However, because R.G. may have taken A.G. away at night from her licensed and authorized older natural sister's home, Respondent's neglect by failure to supervise has not been established.

36. Finally, even accepting the probability that some other foster mothers would have been more suspicious of where R.G. had taken A.G. after dark, that some foster mothers would have been more aggressive in their inquiries, due to R.G.'s rebellious attitude, and that some threatened harm existed if R.G. were engaged in unsupervised visitation with A.G. at night, the circumstances for Respondent's failings were created by DCF.

37. To the extent Respondent reported to DCF that she wanted A.G. and R.G., who together raised her home population above its licensed capacity, removed from her foster care, this case equates with Department of Children and Families v. L.G., DOAH Case No. 91-7752C (Recommended Order July 1, 1992; Final

    Order September 2, 1992). Therein, L.G. was exonerated of "neglect" under a different statute, in part because DCF overpopulated a licensed home. Moreover, in the instant case, Respondent several times advised DCF that the baby should not remain there. It is immaterial that Respondent failed to use the magic words, "because I cannot adequately supervise them," or "because I cannot control R.G."

38. While it is clear some better arrangement was necessary, the fault does not lie with Respondent.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Department of Children and Family Services enter a final order dismissing charges against Respondent and restoring her foster care license.

DONE AND ENTERED this 7th 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 7th day of October, 2001.

COPIES FURNISHED:

David West, Esquire Department of Children and

Family Services

Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602

Dr. James Brant, Qualified Representative 1140 Durkee Drive, North

Jacksonville, Florida 32209

Cheryl Smith

Post Office Box 1053

Lake City, Florida 32056

Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard

Building 2, Room 204B Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and Family Services 1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-002837

Orders for Case No: 01-002837