STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

)

Petitioner, )

)

vs. ) Case No. 01-3088

) JOE LANDON and FATIMA LANDON, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 23, 2001 and December 7, 2001, by video tele- conference in Tallahassee, and Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Robin Whipple-Hunter, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32211

For Respondents: Joe and Fatima Landon

(Address of record)

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Joe and Fatima Landon.

PRELIMINARY STATEMENT

By letter dated May 1, 2001, the Department of Children and Family Services (Department) advised Respondents, Joe and Fatima Landon (the Landons) that the Department was revoking their foster care license. As grounds therefore the Department alleged that Respondents violated Section 409.175(8)(a), Florida Statutes, by striking K.N.F., one of the children placed in their care for foster services.

The Landons disputed the revocation and timely requested an administrative hearing to contest the revocation. The request for hearing was forwarded to the Division of Administrative Hearings on or about August 6, 2001. A formal hearing was scheduled for October 23, 2001, by video teleconference. The hearing was not completed on the scheduled day and the case was again scheduled for formal hearing by video teleconference on December 7, 2001.

At the hearing, Petitioner1 presented the testimony of five witnesses, Bruce J. McIntosh, K.N.F., a minor, Lucy Farley, Vanessa Henry, and Harvey Clark. Petitioner's Exhibits numbered

1 through 6 and 9 through 12 were admitted into evidence.

Respondents presented testimony of five witnesses, Tanya Lee, Vanessa Henry, Lucy Farley, Andrew Gardner, and Steven Parker. Respondents' Exhibits numbered 1, 3, 5, 6, and 8 were admitted into evidence. Respondents' Exhibits numbered 4 and 9 were rejected. A ruling on Respondents' Exhibits numbered 2 and 7 was reserved as the documents were not available to the undersigned until they were filed with the transcript.

Respondents' Exhibit numbered 2 is admitted; Respondents' Exhibit numbered 7 is rejected. Official recognition was taken of Chapter 65C-13, Florida Administrative Code, and Chapters 409 and 435, Florida Statutes.

A transcript consisting of three volumes was filed on December 17, 2001. The parties requested thirty days in which to file proposed recommended orders. That request was granted. Petitioner and Respondents filed post-hearing submissions on January 22, 2002 and January 4, 2002, respectively, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, the home of Joe and Fatima Landon was licensed by the Department of Children and Family Services as a foster home, having been issued License No. 0900-17 by the Department.

2. On January 31, 2001, the Department received a report alleging that a child in the Landons' care, K.N.F., had two scrapes on her left hand that might constitute abuse.

3. As a result of these allegations, Harvey Clark and Kevin Daniels, Child Protective Investigators employed by the Department, went to the Landons' home on the day of the alleged incident to investigate. Deputy Steven Parker of the Clay County Sheriff's Office also went to the Landons' to investigate.

4. At the time of the hearing, K.N.F. was seven years old.

   
   

   She recalled that on the day of the incident, Mrs. Landon was driving her and another foster child to school. K.N.F. was reading in the back seat of the van. K.N.F. was trying to sound out the words and was unable to sound them out properly.

   Mrs. Landon turned around and Mrs. Landon's hand hit K.N.F.'s hand. K.N.F. described the incident as follows, "She turned around. And I was holding my hand on the book. She was going to point to the word, but my hand was there." She perceived Mrs. Landon to be angry, but also thought that Mrs. Landon was pointing to the word and hit her hand by accident.2

5. K.N.F. was referred to the Child Protection Team for an examination of her injury. She was examined by Dr. Bruce J. McIntosh. Dr. McIntosh found two abrasions, or scrapes, on the back of her left hand near the thumb. It was Dr. McIntosh's

   opinion that the abrasions were inconsistent with the injury being an accident in that one would not be pointing at something with "such force and velocity" to produce two abrasions to the hand.

6. Notwithstanding Dr. McIntosh's testimony, the abrasions are best described in the photographs taken the day of the incident which reveal two small reddish abrasions on K.N.F.'s left hand.

7. The evidence is sufficient to support a finding that Mrs. Landon reaching around to K.N.F. caused the abrasions on K.N.F.'s hand.

8. Dr. McIntosh determined that the abrasions did not require specific treatment. However, he recommended that K.N.F. and the other foster child in the car be removed from the Landons because it was his impression that the children were afraid of Mrs. Landon. This impression was based primarily on statements made to him by K.N.F. and the other foster child during his examination, which are hearsay.

9. K.N.F. and the other foster children were then removed from the Landons' home by the Department.

10. At the time of the incident, Tanya Lee was employed by the Jacksonville Youth Sanctuary, a private organization contracted by the Department to provide foster care services, as a foster care case worker. She was the case worker for the two

    other foster children in the Landons' home. She visited the home frequently and found a happy, stable environment. She found the Landons to be very supportive and nurturing of the foster children including what she witnessed with K.N.F. during her home visits.

11. Ms. Lee conducted exit interviews of the children for whom she was the case worker when they were removed from the home after the incident. It was her impression that the children felt safe in the Landons' home and wanted to be placed back with the Landons. This impression was based on the statements made by the children during the exit interviews and are hearsay.

    CONCLUSIONS OF LAW

    
    

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

13. The Department of Children and Family Services is the agency charged with the responsibility of licensing foster homes. Section 409.175, Florida Statutes.

14. The Department seeks the revocation of the Landons' foster care license. Accordingly, as the party asserting the affirmative of an issue before this administrative tribunal, the Department has the burden of proof. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st

    DCA 1981). However, in accordance with the definition of "license" contained in Section 409.175(2)(f), Florida Statutes, the licensure status previously awarded to Respondents is not a professional license and does not create a property right.

    Therefore, the Department must establish facts which support its position by a preponderance of the evidence rather then by the clear and convincing standard normally imposed in professional license cases. Department of Banking and Finance v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996). In this case, the Department has not met its burden.

15. In its Proposed Recommended Order, the Department relies on Section 409.175(8), Florida Statutes, and Rule 65C- 13.010(1)(b), Florida Administrative Code, in support of its argument that the Landons' foster home license should be revoked.

16. Section 409.175(8), Florida Statutes, reads in pertinent part:

    (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:

    
    

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

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

    
    

17. Rule 65C-13.010(1)(b), Florida Administrative Code, reads in pertinent part:

    1. Responsibilities of the Substitute Parent to the Child.

       
       

       * * *

       
       

       (b) Family Care Activities.

       
       

       5. Discipline.

       a. The substitute care parents must discipline children with kindness, consistency, and understanding, and with the purpose of helping the child develop responsibilities with self-control.

       
       

       * * *

       
       

       f. The substitute care parents must not use corporal punishment of any kind.

       
       

18. There is much discussion in the record as to whether Mrs. Landon's action was intentional or an accident. However, the clear wording of Section 409.175(8)(b)1., Florida Statutes, reveals that it does not matter for purposes of finding a violation under that statute. What matters is whether the act materially affected the health or safety of the child. The evidence is insufficient to establish that Mrs. Landon's action of reaching back and causing the abrasions, whether intentional or negligent, materially affected the health or safety of K.N.F. Dr. McIntosh determined that the abrasions did not require

    specific treatment. The evidence is insufficient to establish that K.N.F.'s health or safety was materially affected.

    See Mayes v. Department of Children and Family Services, 26

    
    

    F.L.W. D2905 (Fla. 1st DCA, opinion issued December 12, 2001).

    
    

19. Whether the act was intentional or an accident may have bearing on the issue of corporal punishment. However, the evidence is insufficient to establish that Mrs. Landon's act constituted corporal punishment. Mrs. Landon's action caused the abrasions. She did not administer corporal punishment.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order rescinding its revocation of the Landons' foster care license.

DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 31st day of January, 2002.

ENDNOTES

1\ The case was originally styled, Joe and Fatima Landon vs. Department of Children and Family Services. The parties have been realigned to reflect the Department as Petitioner and the Landons as Respondents.

2\ Mrs. Landon did not testify. Mr. Daniels, who interviewed

K.N.F. and who wrote the abuse report regarding this incident, did not testify. All other accounts of what happened in the van and comments attributed to K.N.F. and Mrs. Landon during the investigation are hearsay and are not competent to support a finding of fact as contemplated by Section 120.57(1)(c), Florida Statutes.

COPIES FURNISHED:

Robin Whipple-Hunter, Esquire Department of Children

and Family Services Post Office Box 2417

Jacksonville, Florida 32211

Joe and Fatima Landon (Address of record)

Peggy Sanford, 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 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: 01-003088

Orders for Case No: 01-003088