STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EDWARD SAWYER AND CYNTHIA SAWYER,
Petitioners,
vs.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Respondent.
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) Case No. 02-0833
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RECOMMENDED ORDER
Notice was provided, and on July 23, 24, 25, and 26, 2002, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was in Tampa, Florida, and was conducted by Fred L. Buckine, Administrative Law Judge.
APPEARANCES
For Petitioners: Henry E. Nobles, Esquire
Wanda Davis, Esquire Henry E. Nobles, P.A. 1511 Morgan Street
Tampa, Florida 33602
For Respondent: Raymond R. Deckert, Esquire
Keith J. Ganobsik, Esquire Jennifer Lima-Smith, Esquire Department of Children and
Family Services
Regional Headquarters, Suite 902 9393 North Florida Avenue Tampa, Florida 33612
STATEMENT OF THE ISSUES
The determinative issue in this cause is whether Petitioners "abused" and "neglected" foster children in their care, as those terms are defined in Sections 39.01(2) and 39.01(45), Florida Statutes (2000). As a result of the alleged abusive neglect, two subsequent issues are raised: (1) whether Petitioners' foster home license should be revoked for the reasons as stated in the Administrative Complaint dated July 20, 2001; and (2) whether Respondent's denial of Petitioners' requests to adopt the "M" sibling and to adopt the "T/S" sibling foster children, based primarily upon the allegations in the Administrative Compliant dated July 20, 2001, as explained in a denial letter dated January 18, 2002, was appropriate.
PRELIMINARY STATEMENT
On February 25, 2002, the Department of Children and Family Services (Respondent, Department, or Agency) referred Edward and Cynthia Sawyer's (Petitioners, Sawyers or Mrs. Cindy) request for hearing to the Division of Administrative Hearings (DOAH) to conduct a hearing to resolve disputed facts. Section 120.57(1), Florida Statutes (2000). All references in this Recommended Order are to the Florida Statutes (2000) and Florida Administrative Code (2000).
This case resulted from an Administrative Complaint proposing to revoke the Sawyers' foster care license and denying
the Sawyers' adoption applications. The Sawyers requested a de novo hearing in accordance with Chapter 120, Florida Statutes, to challenge Respondent's "verification" of the abusive neglect allegations contained in Abuse Report 2000-198255, the source document upon which the Agency based its proposed revocation of the Sawyers' foster care license. Based upon the above report, all foster children were removed from the Sawyers' foster home on or about February 16, 2001.
Petitioners also challenged the Agency's denial of their applications to adopt the "M" and the "T/S" sibling groups. The adoption denials are based primarily on the Agency's "verified findings of abuse" regarding allegations contained in Abuse Report 2000-198255. The "M" foster children, S.M., F.M., D.M., and N.M., and the "T/S" foster children, R.T., K.S., L.S., and Lil L.S., were the subject of the adoption applications. During the hearing, Petitioners withdrew their application to adopt the "T/S" foster children, who apparently had a change of heart and now want to be adopted by their current foster parents.
Petitioners maintained their challenge to the denial of their request to adopt the "M" foster children, who, based upon the record, want to be adopted by Petitioners.
On July 11, 2002, Respondent filed a motion for the introduction into evidence of 14 video-taped interviews of foster children who were housed with Petitioners at some
undetermined time periods. The 14 video-taped interviews were of children ranging in ages from five years to 14 years old. A telephonic hearing on Respondent's motion for introduction of the taped interviews was conducted. Of the 14 taped interviews, the taped interviews of D.I., B.V., and R.C., children ten years of age or older, were admitted in evidence and have been reviewed by the undersigned and considered in the findings of fact herein below.
For the reasons below, taped interviews of 11 foster children were not admitted in evidence: (1) the children were of tender ages ranging from five years to nine years old;
(2) the extended length of time between their removal from Petitioners' home and the taping of their interviews, in most instances was more than 30 days; (3) the stated and intended purpose of taping the children's stories was to use as evidence against Petitioners at some later date; however, Respondent intentionally failed to give Petitioners notice that statements of the children would be taped; (4) inconsistencies between the children's initial statements and the video-taped statements of their experiences in Petitioners' foster home; and (5) the availability of the older children to give live testimony at the final hearing therefore affording Petitioners an opportunity to examine each child under oath.1
At the hearing, Respondent presented testimony of
22 witnesses: Bruce Bryant, Bobby Cooper, Michael Cripe2 and Andy Davis, Department employees; Detective Christi Esquinaldo, Hillsborough County Sheriff's Department; Andy Davis, Patricia Gaines, Robert A. Geitner, Donald Hines, Heather Howell, Mike Katz, Kate Kimball, Peggy Nierman, Christa Williams, and Jay Taylor, all Department Employees; and "T/S" siblings R.T.,
15 years old, L.S., 12 years old, K.S., 13 years old and Lil L.S., 10 years old. The "T/S" children, who earlier expressed a joint desire to be adopted by the Sawyers reversed their joint decision after removal from the Sawyers' home and do not now desire to be adopted by the Sawyers. Respondent's Exhibits R-A through R-W (composites) were received in evidence. By stipulation of the parties, notes of the Guardian Ad Litem, Andrea Davis, were submitted after the conclusion of the hearing.
Petitioners testified on their own behalf and presented the testimony of the following witnesses: Steve Barber, Petitioners' Pastor and a former high school football coach; Karen Braden, Department employee; Donald Dixon, Executive Director of Operations, Children's Board of Hillsborough County and former District Administrator for the Department during the time period pertinent to this cause; David Howard; Jeff Jane, Lance Corporeal, USMC, and former foster child; John Levengood,
HCSO; Tracy Levengood, Mary Murray, R.N. and DCF-approved babysitter employed by Petitioners; Kim Plant; Tim Rouse; L.L.S. (not same L.S. who testified for the Department); Anjanet Stilwell, Department Family Protection Counselor assigned to Petitioners; Shannon Stilling, Church School, Care Director; and Lynn Witt. Petitioners' Exhibits P-1 through P-133 (composites) were received in evidence without objection.
A transcript of the proceeding was not ordered. The parties' request for an extension of time to filed proposed recommended orders was granted, thereby waiving the time requirement for this Recommended Order. Proposed Recommended Orders were filed by the parties and have been given consideration in rendering this Recommended Order.
Respondent's Administrative Compliant alleged that Petitioners committed four specific offenses during a time period from December 21, 2000, through March 1, 2001. Having established a 71-day time period of alleged misconduct, Respondent effectively restricted its evidence in support of its allegations of Petitioners' misconduct to the 71-day time period. As a result, evidence dated prior to December 21, 2000, and evidence dated subsequent to March 1, 2001, is neither relevant nor material to the issue of the Agency's denial and refusal to reissue Petitioners' foster license as contained in the Administrative Complaint challenged by Petitioners.3
Conversely, in considering Petitioners' challenge of the adoption denial, the Agency is required to engage in a complete and holistic review of Petitioners' life-style because of the permanency of adoption. Therefore, evidence dating from 1986, the date of the Agency's initial approval of Petitioners for foster license, to the date of adoption denial has been considered by the undersigned.
FINDINGS OF FACT
Based upon observation of the witnesses and their demeanor while testifying in person and by taped interviews, the documentary materials received in evidence, stipulations by the parties, evidentiary rulings during the final hearing, and the entire record compiled herein, the following relevant and material facts are found.
At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving and approving applications for foster care licenses and for monitoring, regulating, and if necessary, suspending or revoking foster parent licenses pursuant to Section 409.175, Florida Statutes.
At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving, evaluating, approving or denying applications for adoption of foster
children pursuant to Section 63.062, Florida Statutes, and Chapter 65C-16, Florida Administrative Code.
Petitioners' Foster Care Licensure History
Petitioners are married and are the parents of two biological children. Mrs. Sawyer was reared with foster children and has always desired to become a foster parent. Petitioners were initially licensed by the Agency as foster parents in October of 1986, and six months later on April 20, 1987, Petitioners voluntarily closed their foster home due to Mrs. Sawyer's complications with the pregnancy of their second child. During the above six-month licensed period, Petitioners successfully fostered ten children, the last child was removed by the Agency from the foster home in March 1987.
In December 1986, two months after initial licensing, Petitioners were the subject of an abuse report alleging spanking a child. The Agency's investigation concluded that the abuse report was "unfounded,"4 and closure was recommended by the Agency's investigator.
On September 7, 1987, the Agency again licensed Petitioners as foster parents. Eight months thereafter, on May 23, 1988, the Agency again closed Petitioners' foster home. On August 10, 1988, three months later, the Agency, for the third time, licensed Petitioners as foster parents.
Mrs. Sawyer acknowledged using corporal discipline on a foster child during the 1988 licensure period. As a result of the corporal punishment incident in 1988, the Agency required Petitioners to attended its Model Approach to Partnership in Parenting (MAPP) classes, which Petitioners attended and completed.
The 1988 licensure of Petitioners as foster parents was specifically granted for the "T/S" sibling group who, with voluntary permission of their biological parents, had been living with Petitioners for approximately two months before their official placement with Petitioners by the Agency.
Since 1988, the Agency has annually renewed Petitioners' foster care license.5 Responding to the requests of the Agency, Petitioners on occasions fostered as many as 16 to
20 foster children. Petitioners' foster home was frequently used by the Agency for unannounced "overnight" foster care, many of which extended into protracted foster care periods. During periods when the Agency's need for foster home beds was pressing, the Agency's rule-of-five was waived by the Agency's District Administrator so that Petitioners could and did house more children.6 The record reflects no evidence of complaints of abuse or any other complaints during the periods the Agency needed and made use of Petitioners' home to foster children.
The evidence of record, viewed chronologically, reflects a
protracted period of intense investigation of allegations which, if true, were apparently ongoing over a period of months prior to the filing of Abuse Report 2000-198255, the basis of the Agency's intended revocation of Petitioners' foster care license.
Petitioners' latest license was issued on August 24, 2000, and was effective until August 24, 2001. This August 24, 2000, foster home license is the subject of the Agency's revocation notice, which states:
The revocation is based on the following reasons: Between December 21, 2000 and March 1, 2001, the Department of Children and Families investigated eleven reports of abuse and neglect involving your home. In Florida Abuse Hotline Report 2000-198255[7] it was concluded that there were verified findings of excessive corporal punishment and confinement, bizarre punishment and excessive restraint committed by Cynthia Sawyer towards several foster children in her care. The report also noted several instances of inappropriate physical punishment, which is a violation of the foster parent disciplinary policy. These incidents are considered "an intentional or negligent act materially affecting the health and safety of children in the home or agency" and a violation of the licensing rules promulgated pursuant to section 409.175, Florida Statutes. Section 409.175(8)(b) 1 and 2 Florida Statutes; 65C- 13.010(1)(b)5 Florida Administrative Code. (emphasis added)
The Agency's allegations of neglect and abuse revolved around four specific types of disciplinary activities that are
alleged to have occurred on or after August 24, 2000, the date the current foster care license was issued, and to have terminated on or before March 1, 2001, the date the Agency removed children from Petitioners' home. The four specific types of disciplinary activities are: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) excessive restraints.8 In support of those allegations, the Agency presented the testimonies of several foster children, video- taped interviews of three foster children made in March 2001, approximately one month after removal from Petitioners' home; the testimony of another foster care parent; the testimony of a Guardian Ad Litem; and the testimonies of several of the Agency's employees.
Mike Katz, agency employee, prepared the Administrative Complaint but had no personal knowledge of the abuse allegations contained in Abuse Report 2000-198255, which formed the basis for the Administrative Complaint he prepared. Mr. Katz acknowledged that his understanding of the Agency's practice and policy was that "one incident of corporal punishment" did not equate to foster care license revocation. According to Mr. Katz, evaluating corporal punishment allegations requires all factors be taken into consideration and the totality of circumstances be reviewed; the intended result
is a fact specific determination for each case of alleged corporal punishment.
Kate Kimball's, the Sawyers' family service counselor, testimony was primarily concerned with agency reports dating from December 3, 1996, through the year 2000. Her testimony regarding and relating to matters that occurred prior to December 21, 2000, are not relevant nor material to issues of foster home license denial as stated in the Administrative Complaint that is challenged by Petitioners. However,
Ms. Kimball's testimony regarding the Sawyers' life-style during the period she was their case worker is relevant and material to the issue of denial of the Sawyers' application to adopt the "M" children.
The record reflects that in 1999, while fostering the "T/S" and the "M" siblings under the Agency's District Administrator's waiver of the rule-of-five policy, Petitioners were given an "Above Satisfactory" evaluation by the assigned foster care case worker, Kim Bryant. Ms. Bryant reported that the Sawyers are "very involved, supportative of the children's extra curricular activities and educational needs; show children much needed attention and affection; children and foster parents seem very fond of each other and there is much improvement with the children educationally and emotionally and they appear to
have adjusted well in the home." Ms. Bryant's report is undisputed and credible.
One year later, Hotline Report 2000-078274 was filed containing an allegation of medical negligence against
Mrs. Sawyer as a result of her attempt to refill a prescribed medication for a foster child in her care after the child had taken all the medication. In this particular instance, the Agency had failed to provided Mrs. Sawyer with the child's medical record when the child was placed in her foster home. This medical negligence allegation was resolved when the case worker assigned to the Sawyers secured from the child's file the physician's prescription refill order. The Hotline Report was closed by the Agency with "No indicators of alleged maltreatment-or abuse/neglect."
On June 26, 2000, and after the Sawyers added separate bedrooms and bathrooms for the girls and separate bedrooms and bathrooms for the boys to their home to accommodate 16 children, their case worker, Ms. Kimball, wrote, "It appeared that the Department has continued to utilize their home, as we have had no alternatives." The home study case worker's comments are revealing and reliable. It is reasonable to infer that the Agency was satisfied with the Sawyers' methods of disciplining foster children in their home, when they met the Agency's need for foster beds. However, when the Agency's need for foster
beds were apparently met by other resources their prior position of satisfaction with the Sawyers, for reasons not entirely clear from the record, took a sudden 180-degree turn-about from satisfaction to dissatisfaction, within a six-month time period from June 26, 2000, to December 21, 2000.
The case worker assigned to the "M" children, Anjanet Stilwell, reported that the Sawyers' foster home was "a wonderful foster home--they were very cooperative and caring." Case worker, Karen Braden, who was in the home twice weekly regarding kids assigned to her, wrote, "Cindy is great! I have no concerns regarding placement of my kids. I truly don't know how she does it!" I find Ms. Stilwell's and Ms. Braden's opinions acceptable and reflective of the Agency's approved satisfactory view of the Sawyers as foster parents for many children who were housed solely by the Agency's waiver of its rule-of-five policy and for its benefit.
One foster care referral report regarding the "T/S" children written by case worker Heather Blair was considered at the Adoption Applicant Review Committee (AARC) staffing. In her report, Ms. Blair summarized Psychologist Lisa Gaise's conclusions that: "3 T/S children reported being paddle [sic] and 'the context in which these clear disclosures were made was so natural as to dispel any questions of the veracity of their statements.'" Apparently the AARC staffing considered
Ms. Gaise's comments credible in their decision to deny the adoption application. The fact of the matter is that Ms.
Blair's statement regarding the "truth" and acceptance of Lisa Gaise's opinion that the child's statement were true, is not accepted for the truth asserted and, therefore, is not credible.9
Bobby Cooper, another agency witness, commenced his investigation of Abuse Report 2000-198255, on December 21, 2000, at 4:00 p.m. Mr. Cooper's investigation consisted entirely of reviewing reports of other agency investigators. Mr. Cooper had no personal knowledge nor had he personally sought independent collaboration of statements contained in the reports he reviewed. His testimony is not credible.
Kate Kimball, the case worker assigned to Petitioners' foster home, often made announced and unannounced visits to Petitioners' foster home, as required by Agency policy.
Ms. Kimball was in close and constant contact with the foster children and the foster parents during her visits to the home. Ms. Kimball was required to (1) observe the foster children,
speak in confidence with each child individually,
immediately report any "signs" of abuse or "suspected abuse," and to (4) cause "removal" of a child or children from abusive foster home situations. Ms. Kimball never requested nor caused removal of a child from Petitioners' foster home during
the period of December 21, 2000, through March 2001, the period the abuse reports were allegedly "verified."
Detective Christi Esquinaldo was assigned to investigate this case by Hillsborough County Sheriff's Department. Her investigation consisted of interviewing foster child L.S., reviewing the abuse reports, and creating a matrix from those reports. The matrix consisted of Detective Esquinaldo's listing the names of children who were alleged to have been subjected to a specific abusive discipline crossed referenced by the names of the children who made the allegations. According to Detective Esquinaldo, L.S. told her that the Sawyers "made children stand in a corner for three to four hours" as punishment, and Lil David was restrained to a chair for "three to four hours." However, during her testimony at the hearing, L.S. denied having made those statements to Detective Esquinaldo. L.S.'s testimony at the final hearing is credible.
In closing her investigation, Detective Esquinaldo recommended to the State Attorney's Office the direct filing of a felony charge of Aggravated Child Abuse against the Sawyers. The Hillsborough County State Attorney's Office, citing "numerous inconsistencies in the statements of the children," declined to file any charges against the Sawyers and closed their files on the matter. After reviewing the children's
testimonies of record, I am compelled to agree with the Hillsborough County State Attorney Office that the "inconsistencies of the statements of the children" render their collective testimonies unreliable and insufficient to provide a preponderance of evidence necessary to establish a fact.
None of the adult witnesses, presented by the Agency, possessed knowledge acquired through collaboration of the children's stories from independent sources and/or their investigations regarding the abuse allegations alleged in the Complaint. The Agency's employees' initial and total acceptance of the children's recollection of time, i.e. as "all day" and "all night," should have, but did not raise reasonable concern regarding each child's ability to differentiate between fantasy and reality and the child's accuracy of recall as well. The children's story-line, that Petitioners forced each of them to walk, to stand in time-outs, to dig holes, to sleep in their beds or do any other activities "all day" or "all night," was testified to as a form of punishment and not discipline for acting up. Accepting as true, accurate, and realistic, their identical versions of four specific experiences from the several children without more does not equate to credible nor collaborative evidence.
The testimonies presented by several foster children at this hearing were, at best, confusing, conflicting and
contradictory. When asked specific questions about the several forms and methods of discipline, the unanimity of their responses were: stand in the corner "all night," dig holes "all day," walk in circles "all day," and sleep in the bed "all day." The fact that the children's testimonies clustered in a certain position (sibling groups wanting to stay together as a group and those sibling groups wanting to be moved to another foster home as a group gave almost identical answers to questions relating to specific disciplines) does not mean nor imply that their testimonies were necessarily accurate, realistic, or true. In fact, the record reflects that several of the testimonies initially given by the children to the Agency were in conflict with their testimonies subsequently given to the Agency representatives and testimony given at the final hearing.
Considering the children's testimonies in the context of the children's ages; the children's physical sizes; the physical improbability of a small child actually squatting, with knees bent, against a wall with both arms held out in front of the body or held out to the sides of their bodies all day; and their description of time as "all day" and "all-night," rendered their collective testimonies unrealistic, unreliable and, therefore, not credible. Steve Barber, Petitioners' pastor and the one who has interfaced with the foster children, based upon his experience as a former high school football coach, gave
undisputed testimony that the physical size and stature of the young children made it physically impossible for any of them to "stand, squat, dig or walk in circles, all day." Based upon the testimony of Mr. Barber and the unrealistic testimonies of the several children, Respondent has failed to prove that Petitioners committed "excesses" in administering policy discipline, by imposing time-outs, separation from other children, grounding, loss of privileges, and by assigning other chores.
I find that the cumulative testimonies of the foster children found in the Agency reports in evidence and of those children who testified at the final hearing unreliable, inconsistent, devoid of details, physically impossible in most instances and, therefore, insufficient to establish by a preponderance that the Sawyers subjected them to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints as punishment as alleged in the Administrative Complaint filed in this cause.
Of the three video-taped interviews reviewed by the undersigned, the interview of D.I. revealed a reliable and detailed account of the daily life and activities of the foster children in the Sawyers' home from an articulate child with personal knowledge and accurate recall of events.
First, D.I. was in the Sawyers' foster care for a period of seven months. Second, D.I. appeared to be bright, intelligent, articulate, straight-forward, and he was definite and clear in his responses to questions asked by the Agency's spokesperson. Third, D.I.'s memory of details was complete, uncompromising, realistic, and reasonable. Fourth, D.I. acknowledged that his possibility of being reunited with his biological mother was nonexistent, and he would probably be in foster care until his majority, if not adopted, preferably by the Sawyers. Fifth, he is familiar with and aware of foster children, individually and as sibling groups "working the foster care system for their desired ends by telling stories."
During his seven months' stay in foster care with the Sawyers, D.I. testified that he never saw nor was he made aware by other children of any child punished by the Sawyers in the form of being forced to stand in time-out "all day," forced to dig holes "all night," or forced to walk in circles "all day."
D.I. knew that Lil L.S. pooped in her pants and smeared the poop over the walls of the foster care residence. He knows this because he was one of the older children who volunteered to clean the poop off the walls; he remembers these incidents because the walls had "white spots" where the cleaning solutions were used. He also remembered because Mrs. Sawyer would put white powder on the bedroom floor leading from Lil L.S.'s room
to other parts of the house. In the morning when Lil L.S. was awaken and asked about poop on the walls, she would blame other children, but her foot prints would prove contradiction of the story of not having gotten out of bed during the night.
According to D.I., Lil L.S. was never "hosed down outside" the house after pooping on herself. Each time Lil L.S. pooped on herself, Mrs. Cindy would require her to go into her bathroom10 and bathe herself.
When asked about household chores and work around the house as a form of punishment, D.I. answered that older children would be offered the opportunity to "work outside" with
Mr. Sawyer on "things around the house," only if that child wanted to work outside. If not, the child was given the option to stay outside and play or to go inside and watch T.V., play games, or do other things. D.I. was emphatic that the opportunity to do other things was made available to each child only after that child completed his or her homework. Homework was always first, and some children got in trouble because of not doing or completing their homework.
According to D.I., the younger children who played outside would customarily play in the round-about driveway, the yard, and on the Jungle Jim play set. The older children would customarily do other things. D.I.'s examples of "doing things around the house" were: helping Mr. Sawyer work on his truck;
putting together and/or repairing the Jungle Jim swing-slide play set; helping to dig a trench line to lay pipe for the new water heater connection; tending to and caring for the animals; planting trees and stuff; and painting and building additional bathrooms and bedrooms onto the house.
According to D.I., all outside activities were made available to any children who wished to participate in them instead of playing among themselves. When asked, D.I. was empathic in his answer that no child, "as a form of punishment," was forced to assist Mr. Sawyer in "doing things around the house," if they wanted to help they could, if not, then other activities were available and that no child was handcuffed nor had he seen any (metal) handcuffs at the Sawyers' house, save his pair of red plastic toy handcuffs that came with a toy set the Sawyers gave him. D.I., from observation, knew Lil David to be self-mutilating.11 D.I. recalls that "Lil David would sometimes just pick himself to make himself bleed." During his seven-month stay and on more than one occasion, in passing, D.I. would see Lil David in bed at night with velcro restraints on his wrists and the bed to stop him from picking himself and making himself bleed. "Mrs. Cindy did this to keep Lil David from picking himself when he was asleep."12
Regarding meal times and meals at Mrs. Cindy's, D.I. stated that all the children ate the same meal at the same time
"cause there was so many of us and Mrs. Cindy had no time for separate meals and we [older children] helped to feed the young children, we did help." When asked about peanut butter sandwiches as a form of punishment, D.I. responded, "Those children who had been bad or were in time-out at mealtime were separated from the other children and given peanut butter sandwiches to eat while in their time-outs. But Mrs. Cindy would say to them 'say you are sorry and you can join us.'" He never saw nor knew of a child in time-out (against the wall) for "hours." The longest time-out he could recall was about
"20 minutes," and that was because the child was "acting up" in the time-out and had additional time added to the time-out.
D.I. was familiar with the "T/S" and (other) siblings.
He knew from personal experience in foster care that older siblings would instruct their younger siblings on all matters: what to say, when to say it, how to act, and how to act up.
D.I. was personally familiar with "foster homes" and the means and methods of "getting out of one" and "staying together" as a sibling group and getting into another as a group.
When asked about "corporal punishment" i.e. spanking with a wooden paddle and/or slapping with hands, D.I. testified that during his seven-month stay, he knew of no child to have gotten spanked with a wood paddle. "I never saw a wood paddle." Regarding "getting slapped by Mrs. Cindy" as punishment, D.I.
answered that Ms. Cindy would "tap" you on the back of the head, butt, or shoulder "to get your attention, like if she was talking to you and you were watching T.V. and not answering her but she never slapped any of us for punishment." This method of getting one child's attention by touching is reasonable when considered in the context of the Agency's waiver of its rule-of- five policy so as to place as many as 16 to 20 children in the Sawyers' foster care home. 13
The video testimony of D.I. is accurate, detailed, reasonable, realistic, based upon his personal knowledge, undisputed and, therefore, credible. Based in part upon the video testimony of D.I., Respondent has failed to establish by a preponderance of evidence that the Sawyers subjected a foster child in their care to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints for the time period alleged in the Administrative Complaint.
The Sawyers' admitted use of velcro restraints on Lil David was neither excessive, punitive nor disciplinary, but rather was for Lil David's protection from harming himself. The Sawyers' used velcro restraints on Lil David during the day only when he was in time-out and sitting in a small rocking chair and during the night when he was put to bed. The evidence of record by testimonies of virtually every witnesses who knew Lil David
knew him to be a self-mutilator. The use of restraints is an acceptable, preventative method for protection in this situation.
The record contains no evidence that the Agency provided the Sawyers with an evaluation report of Lil David upon his placement nor during his stay within their foster home.
Lil David's medical report would have advised the Sawyers of Lil David's self-mutilation problem. It is a reasonable assumption that had the Agency provided Lil David's medical records, the Sawyers would have been alerted to Lil David's self-mutilation problem and would have had the benefit of the Agency's instructions regarding care and protection for Lil David's problem of self-mutilation.
The Sawyers' admitted use of velcro restraints reflects a caring and sincere effort of the foster parents to protect the child from hurting himself. In the absence of information from the Agency regarding Lil David's condition, the Sawyers' use of an acceptable, safe and preventative method of care for this particular problem reflects their efforts to comply with the "spirit" of the rules regarding foster parent responsibilities. The record contains no evidence that the Sawyers' use of velcro restraints to prevent Lil David's self- mutilation was "willfully harmful" or "neglect" or an "abusive" act of intentional punishment.
Bobby Cooper's, child protection investigator, reported findings and conclusions were based entirely upon statements provided by individuals he interviewed. The record contains no evidence of collaboration to substantiate testimonies of the children. Therefore, Mr. Cooper's testimony is hearsay without support and therefore, not credible.
Finally, consideration is given to what is not in evidence. First, the record in this case contains no evidence of a child alleged to have suffered ongoing neglect and abuse in the form of excessive, bizarre,14 and inappropriate punishment, or to have borne body marks or bruises resulting from the alleged treatment by the Sawyers. Second, the record in this case contains no evidence of a Sawyer-housed foster child to have suffered "physical, mental or emotional injury" as the result of the alleged negligent and abusive treatment. Third, the record contains no evidence from which it could be inferred that a foster child removed from Petitioners' home suffered a "discernible and substantial impairment in the ability to function within the normal range of performance and behavior" as a direct result of the alleged abusive discipline.15
The evidence of record supports a reasonable conclusion that Mrs. Sawyer was proactive in seeking the assistance of local politicians and state officials to accomplish her apparent goal of responsive and exceptional
services from the Department for her foster children. It is undisputed that the Sawyers, with the advice and consent of the Department, had more foster children than was reasonable to expect only two adults to provide a minimal of custodial care. Permitting the Sawyers to house as many as 16 to 20 foster children, plus their two biological children, at any point in time, was permissive and self serving by the Department and was overreaching acceptance by the Sawyers. It is a reasonable inference that in this case both the Department and the Sawyers engaged in a mutual course of conduct to satisfy their respective needs and desires. When the mutually beneficial relationship came to a close, a reversal of opinions and recommendations from the Department regarding the Sawyers occurred. The Sawyers, who had been described by the Department as "unbelievable foster parents," became merely unbelievable when confronted with and evaluated by conflicting stories of
14 foster children removed from their home.
Denial of Adoption Application for the M sibling group
Turning to evidence in the record regarding the denial of Petitioners' application to adopt the four "M" siblings, the fact that some animosity existed between Ms. Gains16 and
Mrs. Sawyer, became readily apparent during Ms. Gains' testimony. The existence of animosity was further confirmed by Ms. Gains' detailed chronology of alleged abusive acts and
omissions by Mrs. Sawyer over a period in excess of one year. When answering questions asked by the Agency's representative regarding Ms. Gains' statements and opinion of Mrs. Sawyer, D.I. answered: "She [sic] said handcuffs and other things about
Mrs. Cindy so as to get kids moved out of Mrs. Cindy's house to her house." Based upon D.I. testimony above, Ms. Gains' testimony given at the hearing and her written report in evidence is biased and unreliable.
In the evaluation and review of Petitioners' adoption request, Respondent appropriately engaged in a holistic evaluation of all abuse reports filed, investigative reports, personal opinions, and comments from Department employees, community members and other foster parents, dating from as early as 1986 to the date of the adoption denial. Respondent, in reevaluation of Petitioners' adoption request for the "M" children, should hereinafter be guided by the Findings of Fact herein that allegations of excessive discipline as contained in the Administrative Compliant herein were not proven by the testimonies of the Agency's witnesses and documentary evidence. Therefore, allegations found in Abuse Report 2000-198255 reported or alleged to have occurred within the time period of December 21, 2000, through March 1, 2001, shall not be considered by the Agency in its reevaluation of the Sawyers' application to adopt the "M" siblings; being mindful that the
"M" siblings' desire to be adopted by the Sawyers is in the "M" child(ren)'s best interest.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
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). This de novo proceeding involves the revocation of Petitioners' foster home license. Normally, license revocation proceedings are considered penal in nature and implicate significant property rights. Therefore, the extension of the clear and convincing evidence standard is warranted. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996) and Section 120.57(1)(h), Florida Statutes. However, a foster home license is not considered a professional license and does not create any significant property rights in the recipient. Therefore, the clear and convincing evidence standard is not warranted in a revocation proceeding involving a foster home license. Section 409.175(2)(f), Florida Statutes. Therefore, to meet its burden, the Department must establish facts upon which its allegations
are based by a preponderance of the evidence. Section 120.57(1)(h), Florida Statutes.
The Department has alleged that Petitioners' violation of Rule 65C-13.010(1)(b)5, Florida Administrative Code, is a violation of Section 409.175(8)(b)1., Florida Statutes. Section 409.175(8)(a),(b)1. and 2., Florida Statutes, provides as
follows:
(8)(a) 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:
An intentional or negligent act materially affecting the health or safety of children in the home or agency.
A violation of the provisions of this section or of licensing rules promulgated pursuant to this section.
Rule 65C-13.010,(1)(b)5, Florida Administrative Code, provides as follows:
5. Discipline.
The substitute care parents must discipline children with kindness, consistency, and understanding, and with the purpose of helping the child develop responsibility with self-control.
The substitute care parents must help each child learn that he is responsible for his behavior by teaching him the natural and learned consequences of his behaviors.
Substitute care parents should use positive methods of discipline, including the following:
Reinforcing acceptable behavior.
Verbal disappointment of the child's behavior.
Loss of privileges.
Grounding, restricting the child to the house or yard, or sending the child out of the room and away from the family activity; and
Redirecting the child's activity, for example, if a child is playing with a sharp object take the object away, and replace it with a safe toy.
The substitute care parents must not allow children in care to be subjected to verbal abuse, derogatory remarks about themselves and family members or threats of removal from the home.
The substitute care parents must not subject children to cruel, severe, humiliating or unusual punishment, for example, to use soap to wash out the mouth, eating hot sauces or pepper, placing in hot water, kneeling on stones, etc.
The substitute care parents must not use corporal punishment of any kind.
The substitute care parent must not delegate discipline or permit punishment of a child by another child or by an adult not known to the child.
The substitute care parents must not withhold meals, clothing, or shelter as a form of punishment.
The substitute care parents must not punish children for bed wetting or errors which occur during the toilet training process.
The substitute care parents must not resist implementation of the performance agreement or permanent placement plan as punishment for misdeeds of a child.
The substitute care parents must not deny a child contact or visits with his family as punishment.
Substitute care parents may assign chores as the consequence of misbehavior, although these chores must not involve physical exercise so excessive as to
endanger the child's health, or so extensive as to impinge on time set aside for school work, sleeping, or eating.
The substitute must not threaten a child with removal or with a report to authorities as punishment for behavior. Threatening the child with removal plays into the child's conviction that they are doomed to a series of placements and rejections. The counselor's first task is to identify the child's specific behaviors which are causing the substitute parent to request the child's removal. Once problems are identified the counselor along with the substitute parents and child assess ways to correct the problem. If problems are not corrected and the substitute family continues to request removal, a conference should be held by the counselor with the substitute family and child to discuss the possibility of removal and replacement. Involving the child in the planning may help him feel he has some control of his life.
Section 39.202(2)(a)4., Florida Statutes, allows the Department's employees to have access to abuse reports in that they are responsible for licensure or approval of child care facilities. Pursuant to that provision, the Department may consider abuse reports and their underlying facts in deciding whether to issue a license to operate a foster home.
Similarly, Section 39.202(2)(j), Florida Statutes, allows the Division of Administrative Hearings to have access to the abuse reports for purposes of any administrative challenge. However, the statute does not provide authority for an Administrative Law Judge to treat such reports as sufficient in
themselves to support findings of fact. Section 120.57(1)(c), Florida Statutes, provides, in part, that:
Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.
The Department properly considered the abuse reports in reviewing Petitioners' license renewal. However, in this proceeding, the Department did not establish that the allegations alleged in Abuse Report 2000-198255 for the time- period specified in the Administrative Complaint by a preponderance of the evidence. From the evidence of record, it appears that each of the Department's employees who came into possession of a copy of Abuse Report 2000-198255, at any time during that employee's involvement in either licensure review of adoption application review, apparently accepted all the allegations contained therein as "fact" without further inquiry.
With regard to the Abuse Report 2000-198255, the undisputed evidence is that the Department has failed to produce a preponderance of credible evidence to prove the negligent abuse allegations against the Sawyers.
While the evidence may have established that the Department acted with caution when they received the alleged abuse reports regarding the foster children, and when they
removed the children from Petitioner's home, the evidence of record does not establish that specific allegations contained in Abuse Report 2000-198255 were factually accurate or corroborated by evidence other than the statements of children alleged to have been subjected to excessive, but appropriate and permissible discipline.
Under Section 39.01(30), Florida Statutes, "harm" occurs to a child's health or welfare when any person:
Inflicts or allows to be inflicted upon the child physical, mental, or emotional injury. In determining whether harm has occurred, the following factors must be considered in evaluating any physical, mental, or emotional injury to a child: the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted. Such injury includes, but is not limited to:
1. Willful acts that produce the following specific injuries:
* * *
j. Permanent or temporary loss of impairment to a body part or function.
As used in this subparagraph, the term "willful" refers to the intent to perform an action, not to the intent to achieve a result or to cause an injury.
* * *
4. Inappropriate or excessively harsh disciplinary action that is likely to result
in physical injury, mental injury as defined in this section, or emotional injury. . . .
(emphasis supplied)
Section 39.01(43), Florida Statutes, defines "Mental injury" as "an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior."
In Section 39.01(45), Florida Statutes, "neglect" is said to occur when a child is deprived of or permitted to live in such an environment when such deprivation or environment causes the child's physical, mental, or emotional health to be significantly impaired or be in danger of being significantly impaired.
The record contains no evidence of any child, fostered with the Sawyers and subject to negligence and abuse as alleged in the Administrative Compliant, who suffered any "discernible and substantial impairment in ability to function within the normal range of performance and behavior." Thus, the allegation of "neglect" has not been proven. See J.C. and S.C. v. Department of Children and Families, 773 So. 2d 1220, 1221 (Fla. 4th DCA 2000). Regarding the question of whether any child in Petitioners' foster care home suffered physical injury, the record is silent.
If one were to assume, arguendo, that the Department's evidence of record was credible, the evidence of record does not establish the fact that a child in Petitioners' foster care suffered or could have suffered harm that materially affected that child's ability to function in a normal fashion in regular activities of life. Accordingly, the Agency has failed to prove that Petitioners' conduct, whether intended or not, resulted in "harm," to a foster child, that is a "discernible and substantial impairment in the ability of that child to function within the normal range of performance and behavior."
Denial of Request to Adopt the "M" Siblings
Regarding the Department's denial of the Sawyers' application to adopt the "M" siblings, the Department appropriately engaged in a holistic evaluation of information from many sources: every abuse report filed; all investigative reports; case workers' reports; case workers' opinions, conjectures, concerns and conclusions; comments from persons in the community and other persons acquainted with the Sawyers; and reports regarding the children to be adopted. Based upon the evidence presented, it appears that each member of the adoption application review staff accepted as factual the allegations, conjectures, suppositions, conclusions, and personal opinions of the writers in each of the several reports reviewed, without regard to the truth and or accuracy thereof.
The evidence of record reflects that the Department's Adoption Application Review Committee's denial of the Sawyers' application to adopt the "M" siblings was based upon following:
(1) the "verified findings of abuse" regarding those allegations contained in Abuse Report 2000-198255; (2) the multiple abuse reports filed, some dating back to 1986; (3) home study reports;
(4) behavioral analysis reports; (5) Guardian Ad Litem reports; and (6) and the Hillsborough County Sheriff's abuse investigation report. It is noted that the Committee considered in the aggregate abuse reports from 1986 through 2000, whether "closed" or "verified."
Mr. Bruce Bryant opined that had he been made aware at the time he agreed to deny the Sawyers' adoption application that the State Attorney's Office declined and refused to file any abuse charges against the Sawyers, his recommendation would have changed from denial of the adoption to approval of the adoption based upon the complete record. In July 2001, more than six months after the adoption request for the "M" siblings was made and during Department's controversial consideration of Sawyer's foster care licensure renewal, the Adoption Application Review Committee's determination to deny the Sawyers' adoption request was made.
The best interest of the "M" siblings, expressed by their desire to be adopted by Petitioners and Petitioners' willingness to adopt all of the "M" sibling group when coupled with their prior bonding experience established when they were living with each other, and the fact that allegations of abuse were not supported by credible and reliable evidence, is of paramount concern and dictates approval of the Sawyer's adoption application.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department enter a final order granting renewal of Petitioners' Foster Care License.
It is further RECOMMENDED, that in accord with the expressed desires of the "M" siblings to be adopted by Petitioners, that the Department enter a final order granting Petitioners' application to adopt the "M" siblings.
DONE AND ENTERED this 13th day of November, 2002, in Tallahassee, Leon County, Florida.
FRED L. BUCKINE
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 13th day of November, 2002.
ENDNOTES
1/ During the telephone conference, the undersigned ruled on the Agency's motion to introduce taped interviews of 14 children as follows:
Taped interviews of children five years of age through nine years of age would not be admitted in evidence.
See Sections 90.603(1) and 90.803(23), Florida Statutes. See Griffin v. State of Florida, 526 So. 2d 752 (Fla. 1st DCA 1988). The Griffin court held that a 4-year-old sexually abused child's out-of-court statements were improperly admitted where trail court failed to make specific findings of fact indicating basis for determining admissibility, and there was no independent record evidence attesting to reliability of evidence; the child's statements were not made spontaneously or at first available opportunity after occurrence of alleged incident. The circumstances, content, time, and ages of those children rendered their statements unreliable.
The young children, who were subject to the motion, were more than 30 days removed from the foster home before their video-taped interviews. Notwithstanding that the Agency admittedly knew the taping of the children's interviews were intended to be used against
Petitioners, they failed to give Petitioners notice. Section 90.608(4), Florida Statutes.
The Agency, having possession of these tapes months prior to filing the Administrative complaint herein, waited until 11 days before the final hearing to move for their admission. This avoidable delay effectively denied the undersigned an opportunity to review each video-taped interview as dictated by the Griffin court so as to consider: (1) statement's spontaneity,
whether it was made at the first opportunity,
whether it was elicited in response to questions,
child's mental state when abuse was reported,
terminology used by child, (6) motive to fabricate, (7) ability of child to distinguish between reality and fantasy, (8) vagueness of accusations,
(9) possibility of improper influence, and (10) contradictions and or retractions of prior statements. (emphasis added). Also See State v. Townsend, 635 So. 2d 949 (Fla. 1994).
During the motion hearing, Respondent acknowledged that some of the children changed their pre-taped original testimonies and other of the children had given conflicting accounts of specific incidents when questioned. For the reasons hereinabove, taped interviews of children nine years of age and younger were not admitted in evidence in this proceeding.
Regarding children ten years and older, the undersigned reserved ruling on Respondent's motion for admission of those video tapes in evidence until either: (a) Respondent demonstrated that a specific child was unavailable to appear at the final hearing, or (b) Respondent afforded Petitioners an opportunity to view each taped interview prior to the hearing, and
(c) Petitioners had no objection to its introduction in evidence. Several of the children previously taped testified at the final hearing with no objection from Petitioners. The undersigned accepted in evidence without objection and subsequently reviewed three taped interviews submitted by Respondent. The three taped interviews accepted in evidence reviewed and considered by the undersigned were: (1) B.V (age
12 years), (2) D.I. (age 10 years) and (3) R.C. (age
10 years).
For the following reasons, the taped interviews of
R.C. and B.V. were found by the undersigned to be unreliable and lacking in credibility. R.C. lived with Petitioners for approximately two weeks. R.C. demonstrated no appreciation for the concept of time, context and circumstances. This child responded to time-related questions "of how long" with the answers, "all night long," "all day long." R.C. demonstrated no independent recollection of specific activities or events of punishment. However, when the question asked of him contained the subject matter and insinuated answer, R.C. would cooperate with the interviewer and repeat the questions asked of him in the form of an answer. R.C. did not demonstrate sufficient intelligence to receive a just impression of the facts about which he testified and appeared to lack sufficient capacity to relate them correctly, and appreciate the need to tell the truth. R.C.'s testimony is neither reliable nor credible.
2/ The Department's proffer of Michael Cripe as a Behavioral Analysis/Diagnosis expert was denied for a lack of qualifications. Mr. Cripe does not hold a professional degree from a university or college in any subject matter, has no special professional training and experience, nor does he possess special knowledge or skills about the subject upon which he is proffered. See Section 90.702, Florida Statutes;
Rule 1.390, Florida Rules of Civil Procedure; and Ehrhardt, Fla. Evidence, Section 702.1. See also Ramirez v. State, 542 So. 2d 352 (Fla. 1989) (Determination of whether expert is qualified to express an opinion is peculiarly within the discretion of the trial judge.).
3/ See Cotrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996). The court was confronted with a license revocation wherein Cotrill was found guilty of violations that were not alleged in the administrative complaint. The court, in part, held that: "While evidence came in which might well support the recommended order's findings that appellant acted in violation of sections 627.4085(1) and 627.8405, Florida Statutes (1993), the Department never pled facts that constituted violations of sections 627.4085(1) and 627.8405, Florida Statutes." Id. at 1371. In further clarification, the court stated: "Even though the administrative complaint contained references to these statutory provisions, it did not allege any
act or omission in violation of either provision. As to these putative violations, the administrative complaint did not afford 'reasonable notice to the licensee of facts or conduct which warrant' disciplinary action, as required by chapter 96-159, Section 26 at 51, Laws of Florida, creating section 120.60(5), Florida Statutes (Supp.1996) (incorporating language from section 120.60(7), Florida Statutes (1993), with minor modifications not relevant here). See Robins v. Florida Real Estate Commission, 162 So. 2d 535, 537 (Fla. 3rd DCA 1964)." Id.
The court further stated that: "Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleadings violates the Administrative Procedure Act. To countenance such a procedure would render nugatory the right to a formal administrative proceeding to contest the allegations of an administrative complaint. See Klein v. Department of Business and Professional Regulations, 625 So. 2d 1238 (Fla. 2d DCA 1993)." Id.
4/ According to Donald Dixon, former District Administrator, an abuse report labeled "unfounded" means that after an investigation by the Agency's employees in accord with agency policy, the Agency determined there was no collaborating, substantive or comparative proof to establish the truth or accuracy of the reported allegations. The policy of the Agency, at times pertinent to the case at bar, required all "unfounded" abuse allegation reports to be labeled "closed." As District Administrator, any waiver of the rule-of-five policy had to be approved by him.
5/ Annual renewal of the foster license supports an implicit assumption that the Department, in compliance with its policy of foster license renewal, did not find violations by the Sawyers of any statutes, rules or policies that would warrant denial of license renewal. Therefore, the Department restricted itself, in this proceeding, to prove allegations of neglect and abuse that it alleged occurred no earlier than August 24, 2000 (date of the current renewal), nor later than March 1, 2002 (date of filing the complaint). Evidence dated before August 24, 2000, and evidence dated after March 1, 2001, are not material nor relevant to the issue of renewal of the Sawyers' foster license.
6/ The Department implemented a rule-of-five policy in
April 1997, and, at that time, the Sawyers had more than five children in their home when the Agency licensed them during that period. The rule-of-five policy limited the number of children
a foster parent could house. No foster parent could house more than five children, including their biological children. Only the District Administrator, in the case at bar, Don Dixon, could approve a request for a waiver of the rule-of-five policy.
Mr. Dixon personally approved each request for a waiver of the rule-of-five made by Agency personnel regarding placing more foster children with the Sawyers.
7/ Abuse Report 2000-198255 (Respondent's Exhibits R-R through R-M) is composed of 16 pages with 11 call history dates of 12/21/00; 01/03/00; 02/06/01; 02/18/01; 02/19/01; 02/06/01;
02/16/01; 03/05/01; 04/17/01; 04/12/01 and 03/01/01.
Abuse Report 2000-198255 contained the identification of
20 children. The Agency investigated 31 separate allegations of abuse. Of 31 allegations of abuse investigated, the Agency found "No Indicators" that the allegations of bizarre punishment/confinement; physical injury; excessive restraints; excessive isolation; other mental injury; excessive corporal punishment; and inadequate food, in fact, occurred in 20 instances.
Of the remaining 11 allegations involving corporal punishment, excess isolation, excessive restraints, and confinement, the Agency reported "verified" findings. However, the children who were the subject of those verified findings were not immediately removed, but were permitted to continue living with the Sawyers until all children were removed at once.
8/ The Department's policy statement uses the terms "discipline" and "punishment" interchangeably under the
A heading-Prohibited Method of Discipline and the B heading- Acceptable Methods of Discipline. Time-out(s), as a method of Acceptable Methods of Discipline, must not exceed 15 minutes for any child age six to 11, 30 minutes for children age 12 and over. For a child age five and under not to exceed five minutes. The Agency's policy does not address time-out limitations for a child who continues to act-up in a time-out and is given additional time-out time by the caregiver.
Under the policy section labeled "Consequences of Violation of the Discipline Policy," the Department is required to meet with the Caregiver and discuss the incident. If it is determined that an incident by a caregiver violated the policy, the Department shall give the caregiver a verbal warning and a statement of closure if a second complaint of the same violation is received. The evidence of record does not reflect the
Department's adherence to this section of the Discipline Policy occurring in the case at bar.
9/ The State's expert witnesses should not have directly testified as to the truthfulness of victim. Robert Tingle v. State of Florida, 536 So. 2d 202 (Fla. 1988). In this criminal trial, the Court, citing their decision in Glendening v. State,
536 So. 2d 212 (Fla. 1988), with reference to Kruse v. State,
483 So. 2d 1383 (Fla. 4th DCA 1986); Townsend v. State, 734 P.2d 705, 709 (Nev. 1987); United States v. Azure, 801 F.2d 336 (8th Cir. 1986), adopted the position taken by the Eight Circuit Court of Appeals in Azure. Agreeing that "'some expert testimony may be helpful, but putting an impressively qualified expert's stamp of truthfulness on a witnesses' story goes too far. 801 F.2d at 340.'" 536 So. 2d at 205.
10/ The Sawyers added at least two bedrooms and two bathrooms for the girls and two separate bedrooms and two bathroom for the boys to their home to accommodate as many as 16 to 20 children placed by the Agency in their home by virtue of the District Administrator waivers of the rule-of-five policy and fostering more than five children in their home.
11/ Section 39.01(38), Florida Statutes, defines "Self- mutilation" as one "Likely to injure oneself," as evidenced by violent or other actively self-destructive behavior, it is more likely than not that within a 24-hour period the child will attempt to commit suicide or inflict serious bodily harm on himself or herself.
12/ Velcro restraints are an acceptable method of "restraining" a child to prevent the child from injuring himself or herself.
Lil David's propensity for self-mutilation was discovered by observation of Petitioners only after he was fostered in their home. There is no evidence of record that the Agency provided the Sawyers with Lil David's medical records or a physiological evaluation that would have presumably alerted the Sawyers to Lil David's propensity for self-mutilation.
13/ The rule-of-five, is a Department policy restricting the number of children a foster parent should have in foster care. Foster parents may foster more than five children (including biological children of the foster parent) or should the Department deem it necessary, due to circumstances of limited availability of foster homes, house more than five children with a foster parent. In every instance when more than three foster children (including the Sawyers' two biological children in the
home) are housed in a foster home, the District Administrator approved each waiver.
The foster parent may request a waiver of the rule-of-five or the Department may request the District Administrator to waive the rule-of-five should the foster parent agree to house more children. In the case at bar and based upon the needs of the Department, the Sawyers were requested by the Agency to care for more than five foster children on more than one occasion and, in fact, fostered as many as 20 children without a reported allegation of abuse regarding those children.
14/ The term "bizarre" is not defined by rule. The common usage of "bizarre" is strikingly unconventional and far-fetched in style or appearance; odd; grotesque. American Heritage Dictionary, pg. 136. Though alleged, Respondent introduced no evidence nor did any witness who testified use the descriptive term "bizarre" to describe the four modes of discipline alleged in the Administrative Complaint.
Acceptable discipline such as "time-outs standing or sitting facing the wall," "removal from the general activities of the other children," "eating peanut butter sandwiches," "cleaning poop off the walls," "velcro restraints on a self-mutilating child," are not, in and of themselves, "bizarre" forms of discipline by the common usage definition.
15/ Section 39.01(2), Florida Statutes, defines "abuse" as "any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child's physical, mental, or emotional health to be significantly impaired." Abuse includes acts or omissions.
Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.
16/ Ms. Gains produced five typed pages of yearly summaries dating from 1997 through December 2000. These summaries of alleged activities by the Sawyers comprised of Ms. Gains' personal conclusions, conjectures, suppositions, and as such are inadmissible. Ms. Gains submitted a separate undated document, titled "Documentation by Patti Gaines," consisting of 14 pages dated from January 1, 2001, through April 24, 2001, containing her personal log of conclusions, conjectures, suppositions, and as such are likewise inadmissible and not considered by the undersigned.
COPIES FURNISHED:
Raymond R. Deckert, Esquire Keith J. Ganobsik, Esquire Jennifer Lima-Smith, Esquire Department of Children and
Family Services
Regional Headquarters, Suite 902 9393 North Florida Avenue
Tampa, Florida 33612
Henry E. Nobles, Esquire Wanda Davis, Esquire Henry E. Nobles, P.A.
1511 Morgan Street
Tampa, Florida 33602
Josie Tomayo, General Counsel Department of Children and
Family Services
1317 Winewood Boulevard
Building 2, Room 204
Tallahassee, Florida 32399-0700
Paul F. Flounlacker, Jr., Agency Clerk Department of Children and
Family Services
1317 Winewood Boulevard Building 2, Room 204B 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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 13, 2002 | Recommended Order | Department, based on abuse report, without independently verifying allegations, denied Petitioners` foster license renewal and adoption application. Department failed to prove allegations. |
