vs. ) Case No. 02-1001
Respondent. )
Pursuant to notice, a formal hearing was held in this case by video teleconference on May 30, 2002, at sites located in Fort Lauderdale and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.
The issue for determination is whether Petitioner's foster home license should be renewed.
By certified letter dated February 4, 2002, the Department of Children and Family Services (Respondent) notified Carmen Infante (Petitioner) that her foster home license would not be renewed and provided the reasons for its action. Respondent advised Petitioner that she had violated Subsection 409.175(8)(b)2, Florida Statutes, by the following:
"On or about May 28, 2001, you failed to provide adequate supervision to the children entrusted in your care. It has been determined that upon entering the children's bedroom they were discovered to be engaging in inappropriate sexual behavior, notwithstanding that a Safety Contract, imposing restrictions on the placement of another child in the aggressor's room, had been signed by you."
By letter dated February 19, 2002, Petitioner disputed the allegations of fact and requested a hearing.
On March 12, 2002, this matter was referred to the Division of Administrative Hearings. The hearing was subsequently scheduled and held.
At hearing, Petitioner testified in her own behalf, presented the testimony of one witness, and entered two exhibits (Petitioner's Exhibits numbered 1 and 2) into evidence.
Respondent presented the testimony of four witnesses and entered one exhibit (Respondent's Exhibit numbered 1) into evidence.
A transcript of the hearing was not ordered. At the request of the parties, the time for filing post-hearing submissions was set for June 14, 2002, more than ten days following the conclusion of the hearing. Only Respondent filed a post-hearing submission, which was filed on June 14, 2002.
In its proposed findings of fact, Respondent references a "Bilateral Service Agreement" (Agreement). However, Respondent did not offer or enter into evidence the Agreement, and the record is void of testimony regarding the Agreement. As a result, no proposed finding of fact or proposed conclusion of law referencing the Agreement is considered in the preparation of this Recommended Order. Respondent's post-hearing submission has been considered in the preparation of this Recommended Order.
Petitioner has a foster home license issued by Respondent.
Petitioner was recruited to be a foster parent by Florida Baptist Children's Home (FBCH).
FBCH is a recruiter of foster parents for Respondent and holds a contract with Respondent to that effect. FBCH performs extensive background checks on and interviews persons
who have been identified as potential foster parents. Subsequently, all paperwork on homes recommended by FBCH for licensure as foster homes is submitted to Respondent.
Respondent makes the determination as to whether to issue a license. Respondent has licensed all foster homes recommended by FBCH.
FBCH recommended to Respondent that Petitioner be licensed.
Respondent and FBCH have an agreement, referred to as a placement performance agreement, regarding the foster parents who have been recruited by FBCH and licensed by Respondent. The agreement requires, among other things, the presence of FBCH at any time Respondent wishes to do anything in connection with the home of a foster parent recommended by FBCH.
One of the requirements of a foster parent is to receive 30 hours of training on, among other things, how to be a foster parent, how to take care of foster children, and the duties and responsibilities of a foster parent. As part of the training, discussions on the abuse of foster care children and the sexual problems of foster care children are held. Petitioner received and successfully completed this training.
Additionally, prior to the training, foster parents attend orientation during which the sexual abuse of foster care children is also discussed.
On March 26, 2001, Respondent placed C.Q., a foster child, in Petitioner's home.
Prior to C.Q.'s placement in Petitioner's home, Respondent had placed six foster care children in her home since Petitioner's licensure.
Prior to C.Q.'s placement, Respondent's social worker, who was C.Q.'s counselor, visited Petitioner's home. At the time, Petitioner was being visited by her minor granddaughter (two years of age) for several days, and Petitioner made Respondent aware of such visitation. Respondent's social worker examined the sleeping arrangements in Petitioner's home. Petitioner had a bedroom for herself, in which she and her granddaughter slept, and a separate bedroom with two beds. C.Q. would be sleeping in the separate bedroom. The separate bedroom was close to and visible from the living room.
At the time of C.Q.'s placement, neither Petitioner nor FBCH had received C.Q.'s "green book." A green book contains a foster child's background and would reveal a foster child's history regarding sexual abuse.1 Consequently, C.Q.'s green book would reveal whether she was abused and whether she was an abuser.2
Whether a foster child was sexually abused may not be known by Respondent at the time of placement with a foster parent.
At the time of placement, Respondent was not aware that C.Q. was a sexual abuse victim and a sexual abuser.
If Respondent discovers that a foster child has been sexually abused, it requires the foster parent to sign a Family Safety Contract. The main purpose of a Family Safety Contract is to make sure that foster parents ensure the well-being of children in their home and to remind foster parents of the condition of sexually abused children.
The Family Safety Contract contains, among other things, three sections: "Prevention Rules," "Intervention Strategies," and "Signatures." The Prevention Rules section contains 16 paragraphs, which have standard language, and three of the paragraphs have blank lines for information to be filled-in by Respondent's social worker. The three paragraphs state the following:
The following people are approved to supervise contact between the children:
must have his/her own room.
may never be placed in a bedroom with a younger child.
The Intervention Strategies section states in pertinent part the following:
1. In the event that prevention measures break down and child-on-child sexual abuse occurs or appears to be imminent, caretaker will immediately.
The Signatures section contains spaces for, among other things, the signatures of the caregiver, family service counselor, and family service counselor supervisor, together with a space next to each signature for the date each signed.
On April 11, 2001, Respondent's social worker reviewed a Family Safety Contract, regarding C.Q., with Petitioner. Petitioner signed the Family Safety Contract the same day.
FBCH was not present during the review of the Family Safety Contract with Petitioner, which was contrary to the agreement that FBCH had with Respondent. FBCH was not notified by Respondent of the review of the Family Safety Contract with Petitioner. The agreement between Respondent and FBCH requires, among other things, the presence of FBCH whenever Respondent reviews a Family Safety Contract with one of FBCH's foster parents.
Before a Family Safety Contract is presented to a foster parent, paragraphs 3, 4, and 5 of the Prevention Rules should be completed by Respondent.
Petitioner contends that paragraphs 4 and 5 of the Prevention Rules were not completed at the time the Family Safety Contract was reviewed with her. Petitioner testified that she would not have permitted the placement of a child, who had been sexually abused, with her and that the social worker/counselor for C.Q. stated to her (Petitioner) that all foster parents signed the Family Safety Contract. Petitioner briefly reviewed the Family Safety Contract and signed it.
Respondent contends that the said paragraphs were completed. The social worker/counselor for C.Q. who reviewed the Family Safety Contract with Petitioner did not testify at hearing nor was her testimony preserved by deposition. The social worker/counselor for C.Q. was out of the country on leave and her leave was approved in February 2002. However, the supervisor of the social worker/counselor for C.Q. testified that the social worker/counselor executed an affidavit and testified as to what the affidavit stated regarding the completion of paragraphs 4 and 5. The affidavit was not offered or entered into evidence. Further, the supervisor testified that she, as a supervisor, would not have signed the Family Safety Contract with blank paragraphs.
An executed Family Safety Contract was entered into evidence. Paragraphs 3, 4, and 5 of the Prevention Rules state as follows:
The following people are approved to supervise contact between the children: Carmen Infante Rep. of Dept. of Children and Families Rep. of Florida Baptist
C should must have his/her own room.
C may never be placed
in a bedroom with a younger child.
(C.Q.'s name was blackened out on the copy entered into evidence, leaving only an initial, in order to comply with the requirement that confidentiality be maintained.) Paragraph 4 was modified by Respondent striking the word "must" and inserting "should" which indicated that it was not mandatory that C.Q. have her own room. The change made in paragraph 4 reflected Petitioner's bedroom arrangements for foster children. The signature lines contained the signatures of Petitioner, the social worker/counselor for C.Q., and the supervisor of the social worker/counselor for C.Q. The date that each person signed the Family Safety Contract was April 11, 2001.
Considering the testimony, evidence and proof required, the contention of Petitioner is found to be more credible and a finding of fact is made that paragraphs 4 and 5 of the Family Safety Contract were not completed at the time that the Family Safety Contract was reviewed with Petitioner.
Subsequent to the placement of C.Q. with Petitioner on March 26, 2001, and to the signing of the Family Safety Contract
on April 11, 2001, but prior to on or about May 28, 2001, Respondent placed another foster child, J.F., with Petitioner. The record fails to indicate the date on which J.F. was placed with Petitioner.
J.F. was younger than C.Q. J.F. was sexually abused.
Respondent did not inform Petitioner that J.F. was sexually abused.
Before placing J.F. with Petitioner, Respondent was aware of the number and location of Petitioner's bedrooms and the sleeping arrangements Petitioner had for foster children. Consequently, Respondent was aware or should have been aware that C.Q. and J.F. would be sharing the same bedroom, but not the same bed. In spite of this awareness by Respondent, it placed J.F. with Petitioner.
Petitioner placed C.Q. and J.F. together in the separate bedroom. Each child had their own bed in the separate bedroom. Respondent, in paragraph 4 of the Family Safety Contract, indicated that C.Q. "should" have her own room. Petitioner's bedroom arrangements would not accommodate separate bedrooms for the foster children, and Respondent was aware of such arrangements. Petitioner complied with the Family Safety Contract.
Petitioner was able to view the bedroom, where the foster children were located, from the living room. The door to the bedroom was not closed.
On or about May 28, 2001, Petitioner went to the foster children's bedroom to check on them. Upon entering the bedroom, she discovered the children engaging in inappropriate sexual behavior. Petitioner immediately stopped the inappropriate behavior.
Petitioner notified both FBCH and Respondent of what she had observed. The foster children were removed from Petitioner's home.
Respondent has not placed any more foster children with Petitioner since the incident.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and
Subsection 120.57(1), Florida Statutes.
Respondent notified Petitioner that her foster home license was not being renewed because she violated Subsection 409.75(8)(b)2, Florida Statutes, by failing to adequately supervise and care for C.Q. and J.F. as mandated by the Bilateral Service Agreement (Agreement) and Rule 65C-13,
Florida Administrative Code. Respondent did not specify what part of Rule 65C-13 that Petitioner allegedly violated.
Petitioner, as the applicant, has the ultimate burden of proof to establish that she is entitled to a foster home license, and the standard of proof is a preponderance of the evidence. Florida Department of Transportation v. J.W.C.
Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, Inc., 670 So. 2d 932, 934 (Fla. 1996); Subsection 120.57(1)(j), Florida Statutes.
Section 409.175, Florida Statutes, provides in pertinent part:
(1)(a) The purpose of this section is to protect the health, safety, and well-being of all children in the state who are cared for by family foster homes . . . by providing for the establishment of licensing requirements for such homes . . . and providing procedures to determine adherence to these requirements.
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(2) As used in this section, the term:
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(c) "Child" means any unmarried person under the age of 18 years.
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"Family foster home" means a private residence in which children who are unattended by a parent or legal guardian are provided 24-hour care. . .
"License" means "license" as defined in
s. 120.52(9). A license under this section is issued to a family foster home or other facility and is not a professional license of any individual. Receipt of a license under this section shall not create a property right in the recipient. A license under this act is a public trust and a privilege, and is not an entitlement. This privilege must guide the finder of fact or trier of law at any administrative proceeding or court action initiated by the department.
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(8)(a) The department may deny, suspend, or revoke a license.
(b) Any of the following actions by a home or agency or its personnel is a ground for denial, suspension, or revocation of a license:
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.
Respondent failed to point out which specific part of Rule 65C-13, Florida Administrative Code, Petitioner allegedly violated, and, therefore, the undersigned must make a reasonable assumption as to the specific violation allegedly committed by Petitioner.
Rule 65C-13.015, Florida Administrative Code, entitled Prevention and Management of Sexual Assault in Foster Care, provides in pertinent part:
Prior to a foster care placement the needs and risk factors of the foster child must be considered in selecting the placement. A complete background check is required. This would alert professionals and caretakers to the necessary precautions to take concerning a vulnerable child or one prone to victimizing other children.
The following safeguards are to be used by the department on a routine basis:
Caregivers must be given detailed and complete information so they can understand the circumstances of the maltreatment in order to avoid an unwilling replication of those circumstances.
If possible, ensure that the child who sexually abuses or victimizes other children is the youngest one placed in the home. Consideration should also be given to other vulnerabilities of the children, e.g., mental handicap, physical handicap, chronic illness, and physical size.
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(e) Staff and caregiver together must outline a plan of care to handle any special management issues identified in the child's history and assessment. It is important that the plan be preventive in nature. The following must be taken into consideration:
Placing the child in a private bedroom;
Limiting access to the child's bedroom;
Establishing rules regarding bathroom utilization;
Establishing a dress code; and
Establishing reasonable guidelines concerning the manner and extent of the expression of affection between the child and others, as well as which persons may be
left alone together, and under what circumstances.
When child-on-child sexual assault, seduction or exploitation occurs in a foster home, shelter home or residential facility, usually one of the following is a factor:
There is a significant difference in the age or size of the children involved; or
Force or threats are used by the alleged perpetrator.
The following reporting procedures are required when a child-on-child sexual assault, seduction or exploitation incident is alleged:
Whoever first becomes aware of the situation is required to report the information to the FPSS Abuse Registry if it is suspected that the alleged victim lacks supervision or has been neglected or abused by the caretaker.
If no report is taken by the abuse registry, all information pertinent to the child-on-child sexual incident will be transmitted to the OPA for protective investigations in the appropriate county as a request for services.
The OPA for protective investigations will share all information with their counterpart OPA for foster care to ensure that a service worker will visit the home or facility, assess the situation and provide the follow-up services needed.
In situations where there is no suspected lack of supervision, or other neglect or abuse, all pertinent information about the home or facility, subjects of the report and the situation will be relayed to the OPA for foster care. If there is cause to suspect neglect or abuse on the part of the caregiver, the incident must be reported. It then becomes the responsibility of protective investigation staff to screen for neglect and abuse and make that determination.
In either case, whether the report is made to the abuse registry or directly to
the OPA for foster care, the counselor is to use the Comprehensive Client Risk Management form to report the client-on-client sexual assault, seduction or exploitation.
The counselor will also report the alleged offense to local law enforcement and notify the parents of the alleged victim.
Once an incident of sexual assault, seduction, or exploitation has been reported and confirmed, follow-up procedures are:
The OPA responsible for the licensed caregiver and the OPA with responsibility for the program serving the child, if different, will determine who will take lead responsibility and how the matter will be handled. Issues to be addressed include:
Licensing;
Initiating safeguards;
Removal of children; and
Follow-up mental health assessment for victim and victimizer.
The appropriate OPA for foster care will ensure that the safeguards listed in 65C-13.015(2) are implemented.
Respondent argues that Petitioner violated the Agreement by failing to provide appropriate supervision given the circumstances of the foster children, i.e., involving sexual abuse, which is mandated by the Agreement. As stated in the Preliminary Statement, Respondent did not offer or enter into evidence the Agreement and the record is devoid of testimony regarding the Agreement. Consequently, the undersigned has nothing to consider regarding the Agreement and, therefore, Petitioner has demonstrated that no violation of the Agreement exists.
Even assuming that the record contained testimony regarding the Agreement, the undersigned is not persuaded that Petitioner violated the Agreement as to providing the appropriate supervision under the given circumstances. Respondent was aware of the sleeping arrangements in Petitioner's home. Respondent was aware that C.Q. was a sexual abuser and yet, with that knowledge and knowing of Petitioner's sleeping arrangements, placed J.F. in Petitioner's care. The undersigned is persuaded that Petitioner was not aware of the sexual abuse circumstances regarding C.Q. The undersigned is also persuaded that, if Petitioner had been aware of C.Q.'s background, Petitioner would not have agreed to have C.Q. placed in her home.
Moreover, the undersigned is persuaded that Petitioner provided the appropriate supervision under the circumstances that were revealed to her. The door to the bedroom where C.Q. and J.F. slept was open and the room could be seen from Petitioner's living room. When Petitioner went into the children's bedroom to check on them, she discovered them engaging in inappropriate sexual behavior. The supervision that Petitioner provided was appropriate under the circumstances of which she was aware and which were revealed to her.
Respondent argues further that Petitioner violated the terms of the Family Safety Contract by permitting the younger
foster child to sleep in the same bedroom with C.Q. The undersigned is persuaded that the Family Safety Contract was not completed when it was presented to and reviewed with Petitioner. As a result, Petitioner was not aware of the special safeguards required under C.Q.'s circumstances, which would be in compliance with Rule 65C-13.015(2), Florida Administrative Code. Again, the undersigned is persuaded that Petitioner was unaware of and Respondent did not reveal to her the sexual abuse background of C.Q.
Furthermore, Respondent modified paragraph 4 of the Family Safety Contract to indicate that C.Q. "should" have her own bedroom, reflecting Petitioner's bedroom arrangements for foster children. Since it was not mandatory that C.Q. have her own bedroom, Petitioner complied with the Family Safety Contract.
Petitioner violated neither Subsection 409.175(8)2, Florida Statutes, nor Rule 65C-13, Florida Administrative Code.
RECOMMENDED that the Department of Children and Family Services enter a final order renewing the foster home license of Carmen Infante.
DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2002.
1/ C.Q.'s placement referral document indicated that C.Q. may have sexual issues.
2/ According to Respondent, over 70 percent of children in foster care are abused.
Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family
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.
