vs. ) Case No. 01-4881
Respondent. )
Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on February 28, 2002, in Largo, Florida, on behalf of the Division of Administrative Hearings (DOAH).
For Respondent: Gary A. Urso, Esquire
The issue in this case is whether Petitioner should deny the application for renewal of Respondent's foster home license because “skinny dipping” with a foster child at the foster home violates Section 409.175, Florida Statutes (2001), and Florida Administrative Code Rule 65C-13. (All section references are to Florida Statutes (2001). All references to
rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
By letter dated November 13, 2001, Petitioner notified Respondent that Petitioner had denied the application for renewal of Respondent's foster care license (Notice of Denial). Respondent timely requested an administrative hearing.
Respondent does not dispute the allegations of "skinny dipping" with a foster child at the foster home. Respondent asserts that "skinny dipping" with a foster child does not violate any specific statute or rule.
The original style of this case denoted the state agency as Respondent. That style, however, misrepresented the burden of proof in the case. The state agency has the burden of proving the proposed agency action to deny the application for renewal of a foster home license. During the administrative hearing, the ALJ amended the style of the case nunc pro tunc to denote the Department of Children and Family Services (Department) as Petitioner and Mr. Robert DeRoo as Respondent.
At the administrative hearing, Petitioner presented the testimony of four witnesses, two of which were by deposition, and submitted two exhibits for admission in evidence.
Respondent testified in his own behalf, presented the testimony of two witnesses, and submitted two exhibits for admission in evidence. The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the
record of the hearing. Neither party requested a transcript of the hearing.
The record remained open for the admission of expert deposition testimony to be submitted as a late-filed exhibit. On March 6, 2002, Petitioner took the deposition of Leo P. Cotter, Ph.D. Dr. Cotter is an expert in mental health counseling, assessment and treatment of sexual abusers, and risk assessment of sexual abuse. Petitioner filed the deposition testimony of Dr. Cotter on March 21, 2002.
On March 11, 2002, the ALJ granted the parties' Joint Motion for Extension of Time to file their respective proposed recommended orders (PROs). Petitioner timely filed its PRO on April 4, 2002. Respondent timely filed his PRO on
March 28, 2002.
Petitioner is the state agency responsible for licensing and regulating foster homes in Florida. A foster home license is valid for a period of one year and must be renewed annually.
Various privatized entities supervise licensed foster homes, review applications for foster home licenses, and make recommendations to Petitioner regarding the applications. However, the recommendations are not binding on Petitioner. Petitioner, rather than the private entity, is the licensing agency. For example, Petitioner rejected the recommendation from the private entity with responsibility for reviewing the application at issue in this proceeding.
Petitioner first issued a foster home license to Respondent on January 28, 2000. Petitioner licensed Respondent to operate a therapeutic foster home. A therapeutic license authorized Respondent to operate a foster home for children with psychological or emotional disorders and for children without such disorders.
Therapeutic foster homes operate under the auspices of a private entity known as Personal Enrichment through Mental Health, Inc. (PEMHS). PEMHS recommended that Petitioner issue the original foster home license on January 28, 2000, and a renewal license that Petitioner issued on January 28, 2001, for the second year.
The second therapeutic foster home license expired on January 27, 2002. Petitioner never took action to discipline or revoke Respondent’s therapeutic foster home license.
In July 2001, Respondent applied for a non- therapeutic foster home license. The non-therapeutic license that Respondent seeks authorizes a licensee to operate a foster home only for children without psychological or emotional disorders.
Non-therapeutic foster homes operate under the auspices of a private entity known as Family Continuity Programs (Family Continuity). Family Continuity recommended that Petitioner approve the application for a non-therapeutic foster home license. However, Petitioner did not follow the recommendation of Family Continuity and denied the application. Petitioner's denial of Respondent's application
for a non-therapeutic foster home license is the proposed agency action that is at issue in this proceeding.
Respondent's application for a non-therapeutic foster home license is not an application for a new license. Rather, it is an application for renewal of an existing license.
Both the therapeutic license that Respondent held at the time of the application and the non-therapeutic license that Respondent seeks authorize the licensee to operate a foster home for children without psychological or emotional disorders. By applying for a non-therapeutic foster home license before the expiration of his therapeutic foster home license, Respondent sought to renew his license to operate a foster home for children without psychological and emotional disorders.
The non-therapeutic license that Respondent seeks does not impose any requirements in addition to those that Respondent had already satisfied when Petitioner granted the therapeutic license to Respondent. The requirements for the therapeutic license are more stringent than those that must be met to qualify for a non-therapeutic license. The requirements for a therapeutic license are more comprehensive, and Petitioner requires an applicant for a therapeutic license to have more training than an applicant for a non-therapeutic license. A non-therapeutic license does not impose requirements in addition to those imposed for a therapeutic license.
Petitioner proposes to deny the application for renewal of Respondent's foster home license on the sole ground that Respondent went "skinny dipping" with two minor males. One of those males was a foster child assigned to Respondent.
The foster child is a victim of past sexual abuse and has psychological and emotional disorders. The child suffers from oppositional defiance disorder and mood disorder.
The symptoms of the disorders include self-injury, such as head banging, aggression, anger, and low self-esteem.
However, many of the behavioral problems diminished during the
15 months that the foster child was in Respondent's care.
The "skinny-dipping" events occurred between six and nine times during the 15 months that the foster child was in Respondent's care. During that time, the foster child was between 12 and 14 years old.
The foster child swam nude in the swimming pool at Respondent's residence and bathed nude in the hot tub adjacent to the pool. On some of those occasions, Respondent was nude in the hot tub and swimming pool with the foster child and at other times the two were in the swimming pool and hot tub independently of each other while both were nude. The local sheriff's office investigated the foster home and found no indicators of abuse.
Once PEMHS learned of the "skinny dipping" events, neither PEMHS nor Petitioner sought to revoke Respondent's therapeutic foster home license or to provide Respondent with remedial training. Rather, PEMHS removed the foster child
from the foster home and refused to assign any more foster children to Respondent's foster home.
At the administrative hearing, Petitioner sought the post-hearing deposition testimony of Dr. Cotter for several purposes. One of those purposes was to show the impact on the foster child from the "skinny dipping" events. Another purpose was to show that the "skinny dipping" was "grooming behavior" for future pedophilia.
The ALJ sustained Respondent's objection to the admissibility of the expert deposition testimony for the purpose of showing the impact on the foster child and for the purpose of showing that the "skinny dipping" was "grooming behavior" for future pedophilia. Dr. Cotter could not render an opinion concerning the actual impact on the foster child from the "skinny dipping" events or whether those events were actually intended by Respondent as "grooming behavior" for future pedophilia. Dr. Cotter did not intend to evaluate either the foster child or Respondent before rendering his opinions and, in fact, never evaluated either individual.
Any expert opinion by Dr. Cotter concerning "grooming behavior" for pedophilia was not relevant to the grounds stated in the Notice of Denial. That expert opinion was relevant only to grounds not stated in the Notice of Denial.
Nudity in a swimming pool and hot tub are not synonymous with "grooming behavior" for pedophilia. Nudity and "grooming behavior" for pedophilia are separate grounds
for denying the application for renewal of Respondent's license to operate a foster home.
Petitioner failed to provide adequate notice prior to the administrative hearing that Petitioner sought to deny the renewal of Respondent's license on the separate ground that Respondent engaged in "grooming behavior" for pedophilia. Fundamental principles of due process prohibit a state agency from notifying a regulated party of the allegations against the party and then, at the hearing, proving-up other allegations. One of the primary functions of an ALJ is to assure that an administrative hearing is a fair hearing.
Respondent was not prepared at the administrative hearing to submit evidence, including expert testimony, to refute any allegation not stated in the Notice of Denial. The admission of evidence relevant to allegations not stated in the Notice of Denial would have required a continuance of the administrative hearing to provide Respondent with an opportunity to refute the allegation. A continuance would have denied Respondent a remedy during the period of continuance, increased the economic burden on Respondent, and frustrated judicial economy. Nothing prevents Petitioner from bringing a separate proceeding against the licensee based on the allegation that Respondent engaged in "grooming behavior" for pedophilia.
The ALJ limited the testimony of Dr. Cotter to those
grounds for denial that Petitioner stated in the Notice of Denial. In relevant part, the Notice of Denial states:
After careful review and consideration, your application has been denied. Our decision is based on the following:
Your admission that you and two minor boys, one of which was a foster child under your supervision, participated in several "skinny dipping" incidents during your recent licensure as a foster parent for Pinellas Enrichment Through Mental Health Services (PEMHS).
As you are aware, the nature of a boy's early experiences may affect the development of his sexual attitudes and subsequent behavior. Therefore, foster parents are expected to provide opportunities for recreational activities appropriate to the child's age. "Skinny dipping" in a hot tub with two minor boys violates the intent of this rule. These incidents reflect poor judgment for a person who is a licensed foster parent.
Respondent's Exhibit 1.
The Notice of Denial essentially states four grounds for denying the application for renewal of Respondent's license. One ground is the impact on the development of the foster child's sexual attitudes and subsequent behavior. Another ground is nudity between a foster parent and a foster child. A third ground is that Respondent exercised poor judgment. The remaining ground is that Respondent provided recreational activities that were not appropriate to the foster child's age.
No evidence shows that the "skinny dipping" events had any adverse impact on the development of the foster child's sexual attitudes and subsequent behavior. Dr. Cotter did not evaluate the foster child to determine the actual impact of the events on the foster child. Contrary to the
statements in the Notice of Denial, Petitioner's representative testified at the hearing that Petitioner did not consider the impact on the child that resulted from skinny dipping with Respondent.
The preponderance of evidence shows that the actual impact of the foster care provided by Respondent during the 15 months in which the "skinny dipping" events occurred was positive. Many of the foster child's behavioral problems greatly diminished. The foster child made remarkable progress in his behavior both at home and at school. The foster child bonded with Respondent, and Respondent was an exemplary foster parent.
The placement of the child with Respondent was so successful that Family Continuity published an article in their magazine about the successful match between the foster child and Respondent. Family Continuity considers Respondent to be an exemplary foster parent and wishes to have Respondent in its foster care program. If Petitioner grants the application for renewal, Family Continuity intends to return the foster child to Respondent for adoption.
The second ground stated in the Notice of Denial is nudity between the foster parent and foster child. Without considering the impact on the foster child, Petitioner determined that being naked in the presence of a foster child, without more, was sufficient to close a foster home, remove a child, and revoke a foster home license.
Petitioner cited no written statute or rule that prohibits nudity between a foster parent and foster child; or that establishes intelligible standards for regulating such nudity. Petitioner failed to submit competent and substantial evidence to explicate an unwritten policy that prohibits or regulates nudity. Rather, some evidence shows that nudity between foster parents and foster children is generally unavoidable and common.
The third ground stated in the Notice of Denial is that Respondent exercised poor judgment. Several witnesses at the hearing and Dr. Cotter opined that Respondent exercised poor judgment. It is unnecessary to determine whether Petitioner exercised poor judgment because Petitioner cited no written rule or policy that defines or prohibits "poor judgment." For reasons stated in the Conclusions of Law, Petitioner must base a denial of a license application on a finding that the applicant violated a specific statute or rule. Petitioner cannot use the Notice of Denial to invent requirements that are not authorized by statute or rule.
Petitioner cited no statute or rule that defines "poor judgment" or that establishes intelligible standards to guide the discretionary determination of whether an applicant has exercised poor judgment. In the absence of intelligible standards, the determination of whether an applicant has exercised poor judgment is necessarily an exercise of unbridled agency discretion.
The use of unbridled agency discretion to make findings of fact violates fundamental principles of due process. Unbridled agency discretion creates the potential that agency decision-makers may define poor judgment by relying on their personal predilections rather than on those standards authorized by the legislature.
Even if it were determined that poor judgment is a standard authorized by the legislature and that Respondent violated that standard, the determination is not dispositive of whether Petitioner should renew Respondent's license to operate a foster home. For example, representatives for Family Continuity and PEMHS agreed in their testimony that Respondent exercised poor judgment. However, Family Continuity recommends that Petitioner issue the non- therapeutic foster home license while PEMHS recommends against renewal of the license.
The remaining allegation in the Notice of Denial is that "skinny dipping" is not an age-appropriate recreational activity. Rule 65C-13.010(1)(b)8a. states:
8. Recreation and community.
a. The substitute parents are expected to provide opportunities for recreational activities for children. The activities must be appropriate to the child's age and abilities.
Swimming in a swimming pool and bathing in a hot tub are recreational activities within the meaning of Rule 65C- 13.010(1)(a)8a. Swimming nude and bathing nude in a hot tub with a nude adult are not appropriate for a child who is
between 12 and 14 years old and whose psychological and emotional abilities are diminished by past sexual abuse.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause. Section 120.57(1). The parties received adequate notice of the administrative hearing.
Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent violated a specific statute or rule.
Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).
It is not sufficient for Petitioner to show that Respondent committed the acts alleged in the Notice of Denial.
The Notice of Denial cannot invent grounds that are not authorized by statute or rule. There must be a specific evidentiary finding that Respondent violated a statute or rule. Mayes v. Department of Children and Family Services, 801 So. 2d 980, 982 (Fla. 1st DCA 2001). Only those grounds in the Notice of Denial that violate a statute or rule can support the proposed denial of the application to renew Respondent's foster home license.
The Notice of Denial states four grounds for denying Respondent's application for renewal of his foster home license. The four grounds are identified in greater detail in the Findings of Fact at paragraph 23 but may be summarized as: the impact on the development of the foster child's sexual
attitudes and subsequent behavior; nudity between a foster parent and a foster child; poor judgment; and inappropriate recreational activities.
Section 409.175(8)(a) and (b) states in relevant part:
The Department may deny, suspend, or revoke a license.
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.
Petitioner failed to show that Respondent violated Section 409.175(8). No evidence showed that the acts of "skinny dipping" materially affected the health or safety of the foster child. Dr. Cotter did not evaluate the child to determine the actual impact on the child; Dr. Cotter limited his testimony to the potential impact on the child. Petitioner did not consider either the actual or potential impact on the child in denying the application for renewal. Rather, Petitioner based the denial solely on nudity between a foster parent and foster child.
The preponderance of the evidence shows that the actual impact of the foster care provided by Respondent during the 15 months in which the "skinny dipping" occurred was positive. Many of the foster child's behavioral problems greatly diminished. The foster child made remarkable progress
in his behavior both at home and at school and bonded with Respondent. The placement was a highly successful placement.
Petitioner failed to show that Respondent violated any statute or rule by practicing nudity between a foster parent and foster child or by exercising poor judgment. Moreover, Petitioner failed to cite any statute or rule that provides intelligible standards for determining when and how an applicant may violate an unwritten agency policy that prohibits nudity or poor judgment. Denial of an application for renewal must be based on a specific finding that Respondent violated a statute or rule. Mayes, 801 So. 2d at 982.
The poor judgment standard asserted by Petitioner assumes that a foster parent is entitled to retain his or her license only if he or she never exercises poor judgment. Such an assumption defies reason, is empirically invalid, and exposes the standard as a bureaucratic artifice for regulation by personal predilection.
Petitioner failed to show that Respondent violated the requirements in Rule 65C-13.011(13)(d) that assure privacy for a foster child. Petitioner relies on testimony from Dr. Cotter. However, that testimony is not evidence that Respondent actually invaded the foster child's privacy. Dr. Cotter did not evaluate the foster child. Dr. Cotter limited his testimony to the potential affect on the child's psychological and emotional boundaries based on Dr. Cotter's
experience evaluating children with similar histories and disorders.
The preponderance of evidence shows that there was no actual adverse impact on the foster child's psychological and emotional boundaries. During the 15 months in which the "skinny dipping" occurred, many of the foster child's behavioral problems greatly diminished under Respondent's foster care. The foster child made remarkable progress in his behavior both at home and at school and bonded with Respondent. The placement was a highly successful placement.
Petitioner satisfied its burden of proof regarding the remaining allegation in the Notice of Denial. Petitioner showed that Respondent violated Rule 65C-13.010(1)(b)8 by providing recreational activities that are not appropriate to the foster child's age and abilities.
The findings and conclusions that Respondent violated Rule 65C-13.010(1)(b)8 are based solely on the expert opinion of Dr. Cotter. Fact witnesses lack the expertise needed to determine whether nude swimming and nude bathing in a hot tub between a foster child and foster parent are recreational activities that are appropriate to the foster child's age and abilities.
Petitioner failed to show that violation of Rule 65C-13.010(1)(b)8 is a sufficient ground to deny the application for renewal of Respondent's license to operate a foster home. Even if it were determined that Respondent had the burden of proof in this case, the preponderance of
evidence shows that the actual impact of Respondent's foster care was positive. Many of the foster child's behavioral problems greatly diminished. The foster child made remarkable progress in his behavior both at home and at school and bonded with Respondent.
Family Continuity, rather than PEMHS, is the private entity responsible for evaluating applications for non- therapeutic foster home licenses. Family Continuity has determined that Respondent is an exemplary foster parent and one that Family Continuity values. Family Continuity determined that the placement of the foster child with Respondent was a highly successful placement.
Family Continuity does not consider the "skinny dipping" events to be adequate grounds for denying the application at issue in this proceeding. Great deference should be accorded the expertise provided by Family Continuity. Petitioner contracts with Family Continuity and compensates Family Continuity to obtain the expertise that the privatized entity provides. Petitioner failed to show adequate grounds for rejecting the deference that should be accorded the expertise provided by Family Continuity.
Nothing prevents Petitioner from bringing a separate disciplinary proceeding against Respondent's foster home license based on allegations that Respondent's actions materially affected the health or safety of the foster child, within the meaning of Section 409.175(8); or that Respondent engaged in "grooming behavior" for pedophilia. The former
allegation would rest on an expert evaluation of the foster child. The latter allegation would require an expert evaluation of the foster parent. As Dr. Cotter observed, specific conclusions concerning each allegation require evaluation of the particular individual.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order finding that Respondent violated Rule 65C-13.010(1)(b)8 and granting Respondent’s application for a therapeutic foster home license.
DONE AND ENTERED this 8th day of May, 2002, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2002.
Gary A. Urso, Esquire 7702 Massachusetts Avenue
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.
